Marcos Gray v. Marcus Hardy ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3413
MARCOS GRAY,
Plaintiff-Appellant,
v.
MARCUS HARDY,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 C 7097 — Rebecca R. Pallmeyer, Judge.
____________________
ARGUED DECEMBER 3, 2015 — DECIDED JUNE 24, 2016
____________________
Before WOOD, Chief Judge, and MANION and HAMILTON,
Circuit Judges.
WOOD, Chief Judge. If Marcos Gray is to be believed, he has
been living in disgusting conditions at Illinois’s Stateville Cor-
rectional Center, where he has been for the last 15 years. Gray
sued Stateville’s warden, Marcus Hardy, in his individual ca-
pacity under 42 U.S.C. § 1983, alleging that the warden vio-
lated the Eighth Amendment by failing adequately to address
(among other things) the infestation of vermin, insects, and
2 No. 13-3413
birds in Gray’s cell. (Randy Pfister is now the warden at Stat-
eville, but because this suit is not against Hardy in his official
capacity, there is no need to substitute or add Warden Pfister
at this stage.) The district court granted summary judgment
to Warden Hardy, finding that none of the conditions Gray
described were so bad that they violated the Eighth Amend-
ment. Gray has appealed from the adverse judgment with re-
spect to the infestations and unsanitary conditions, and he has
also asked this court to direct the district court to consolidate
his case with a similar pending class action in Dobbey v. Weild-
ing, No. 13 C 1068 (N.D. Ill.). We conclude that Gray’s individ-
ual claims were dismissed prematurely, and so we remand for
further proceedings. At that point, the district court can de-
cide how to coordinate this case with the class action.
I
Gray’s complaint, which he filed pro se, paints a dismal
picture of conditions at Stateville. We take this statement from
the materials Gray presented at summary judgment, without
of course vouching for them. He sees cockroaches at least
every other day, and sometimes as often as every few
minutes. Birds fly and nest all over the prison, leaving their
droppings on the floors and walls. Although prison officials
attempt to remove the birds and their nests, they do so only
once every three months. They wash the floors every other
day, but the dander from vermin and the bird feces remain in
difficult-to-reach places despite these efforts. Mice are often
in Gray’s cell, where they eat his food. The cell house is also
infested with ants, spiders, flies, gnats, moths, and mosquitos.
A big source of the problem lies in the prison’s failure to fix
broken windows and other holes in the wall, through which
the birds and other pests re-enter as soon as they are removed.
No. 13-3413 3
Gray suffers from asthma, but before his time at Stateville,
while he was incarcerated at the Cook County Jail, he had not
had an attack for seven years. Since his transfer to Stateville,
his attacks have increased to approximately one every other
year and his medical records reflect regular prescriptions for
asthma drugs such as albuterol. He also developed skin
rashes about eight months after arriving at Stateville. A pest
control company services the prison once a month, but Gray
asserts that its efforts are ineffective, and the company does
nothing about the birds. (The warden asserts that the com-
pany comes more frequently, but there is evidence supporting
Gray’s account, and so we credit it at this stage.) Gray does
not allege that he has ever been bitten or directly harmed by
any type of pest.
The prison’s policies regulating cleaning supplies contrib-
ute to the unsanitary conditions that prevail. Gray receives
only one towel, which is replaced every eight months; he also
gets some watered-down disinfectant spray. He does not
have access to mops, brooms, or buckets, and he is not per-
mitted to store chemicals such as soap in his cell. He is al-
lowed to purchase soap or detergent at the commissary, but
because he may not store it, he must use it all at once.
Gray filed a grievance in April 2011, complaining that the
cells were dirty and unsanitary, infested with the pests we
have described, and that this state of affairs was causing him
health problems. He marked the grievance “emergency” and
addressed it directly to the warden. In May 2011 he wrote a
note to the prison’s Administrative Review Board asking for
a response; the Board acknowledged receiving that note. In
June 2011 the Board informed him that his grievance had been
4 No. 13-3413
received, but it did not respond on the merits. Gray re-sub-
mitted the grievance to his counselor and finally received an
answer in April 2012. But it was not a very satisfactory an-
swer. The letter, signed by a grievance officer and the warden,
acknowledged that wildlife enter the prison and it said that
the prison was making “[e]very effort” to keep it out. In addi-
tion, the letter pointed out that Gray’s cellblock was sprayed
for bugs once a month and that the prison distributed clean-
ing supplies when requested.
II
We take a fresh look at the record, because this case comes
to us from the district court’s decision to grant summary judg-
ment in favor of the warden. Payne v. Pauley, 337 F.3d 767, 770
(7th Cir. 2003). We begin, however, with the warden’s argu-
ment that there is nothing for us to do, because Gray failed to
respond properly to the warden’s statement of undisputed
material facts, submitted under Northern District of Illinois
Local Rule 56.1(a). Had the district court relied on this alleged
lack of compliance, we would have a different case. See Stevo
v. Frasor, 662 F.3d 880, 887 (7th Cir. 2011) (recognizing that
district courts are entitled to insist on strict compliance with
the local rules). But the district court here, as it was entitled to
do, took a more flexible approach. Noting “its obligation to
construe pro se submissions leniently,” the court overlooked
Gray’s noncompliance with Local Rule 56.1 and construed
“the limited evidentiary materials he … submitted in the light
most favorable to him.” It construed the facts presented by the
warden in the same light. We will do the same.
No. 13-3413 5
A
The Eighth Amendment can be violated by conditions of
confinement in a jail or prison when (1) there is a deprivation
that is, from an objective standpoint, sufficiently serious that
it results “in the denial of ‘the minimal civilized measure of
life’s necessities,’” and (2) where prison officials are deliber-
ately indifferent to this state of affairs. Farmer v. Brennan, 511
U.S. 825, 834 (1994).
We have identified several situations that meet this de-
manding test, including lack of heat, clothing, or sanitation.
Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006). In addition,
“[s]ome conditions of confinement may establish an Eighth
Amendment violation in combination when each alone
would not do so.” Id. An adverse condition of confinement, if
endured over a significant time, can become an Eighth
Amendment violation even if it would not be impermissible
if it were only a short-term problem. Dixon v. Godinez, 114 F.3d
640, 643 (7th Cir. 1997).
Reading the record in the light most favorable to Gray, we
are satisfied that he has shown enough to avoid summary
judgment on his claim that the myriad infestations and his
lack of access to adequate cleaning supplies, taken together,
deprived him of the basic human need of rudimentary sanita-
tion in violation of the Eighth Amendment. See Lewis v. Lane,
816 F.2d 1165, 1171 (7th Cir. 1987) ([A] state must provide …
reasonably adequate ventilation, sanitation, bedding, hy-
gienic materials, and utilities[.] (internal quotations omitted)
(quoting Ramos v. Lamm, 639 F.2d 559, 568 (10th Cir. 1980))).
The warden’s only response is to pick apart the individual
components of Gray’s claim and to suggest that each one,
6 No. 13-3413
alone, is not intolerable. But Gray is entitled to have his com-
plaint evaluated as a whole. So we will assume for the sake of
argument that Gray’s deposition testimony about the cock-
roaches alone may not describe a sufficiently serious condi-
tion to meet the first element of the Eighth Amendment test.
Gray’s description is not quite as awful as the plague of
roaches in Antonelli v. Sheahan, where the inmate alleged that
the roaches were constantly crawling on him and waking him
up at night, and the prison was sprayed for bugs only twice
during 16 months. 81 F.3d 1422, 1431 (7th Cir. 1996). In con-
trast, we found no Eighth Amendment violation where a pris-
oner alleged that he often saw several roaches at a time in his
cell, which was treated by an exterminator every six weeks or
so and additionally on request. Sain v. Wood, 512 F.3d 886, 894
(7th Cir. 2008).
Neither might Gray’s complaints about the lack of access
to adequate cleaning supplies, on their own, describe an
Eighth Amendment violation. To date, we have recognized
Eighth Amendment violations where prisoners are deprived
of cleaning supplies and running water only in extreme cir-
cumstances. See, e.g., Budd v. Motley, 711 F.3d 840, 843 (7th Cir.
2013) (pre-trial detainee stated a claim by alleging unhygienic
conditions and lack of access to running water and cleaning
supplies); Vinning-El v. Long, 482 F.3d 923, 923–24 (7th Cir.
2007) (summary judgment in prison’s favor reversed where
prisoner was placed in a cell with blood and feces on the
walls, without running water or sanitation supplies); Johnson
v. Pelker, 891 F.2d 136, 139–40 (7th Cir. 1989) (reversing sum-
mary judgment for prison where prisoner’s cell was smeared
with feces and he was denied water and cleaning supplies).
Here, added to his complaints about the vermin, insects, and
birds, Gray reported that his towel (singular) was changed
No. 13-3413 7
only once every eight months and that he was denied access
to adequate cleaning supplies. In combination, we find that
this is enough to defeat summary judgment for the warden.
Gray’s limited ability to purchase soap from the commissary
does not release the prison from its responsibility to provide
access to sanitation. Hygienic supplies sufficient to meet basic
needs are constitutionally required; it is not enough for the
prison to “allow” inmates to purchase them.
The broken windows both exacerbate the situation and
render ineffective some of the prison’s efforts to address the
problem. We accept the warden’s point that a broken window
at a detention facility is not, itself, a constitutional violation.
Dixon, 114 F.3d at 642–43 (finding that broken windows alone
might not support a claim, but cold can violate the Eighth
Amendment, depending on its severity and duration, and the
inmate’s access to other ways to stay warm). But Gray is not
presenting a stand-alone complaint about the windows. He
asserts instead that the birds infesting the prison fly in
through the windows, and that any remedy must involve fix-
ing those entry points. In fact, Dixon supports Gray’s position,
because the court there took the same holistic view of the con-
ditions that is needed here.
B
Gray must do more than demonstrate a triable issue of fact
with respect to the conditions he faces; he must also show that
he suffered some cognizable harm from the overall lack of a
sanitary environment, and that the warden’s deliberate indif-
ference caused that harm. See Carey v. Piphus, 435 U.S. 247, 264
(1978). The district court found that Gray “acknowledged that
he has not suffered harm from the conditions of his confine-
8 No. 13-3413
ment.” Although the court “believe[d] that Plaintiff’s con-
cerns about his long-term health [were] genuine,” it did not
find those concerns serious enough or concrete enough to
support an Eighth Amendment claim. We do not read Gray’s
complaint and his supporting materials so narrowly: in our
view, Gray has alleged both physical injury and psychological
harm resulting from his conditions of confinement. We dis-
cuss the deliberate indifference requirement below.
When assessing an Eighth Amendment claim, we look for
physical injury “that a reasonable doctor or patient would
find important and worthy of comment or treatment; the
presence of a medical condition that significantly affects an
individual’s daily activities; or the existence of chronic and
substantial pain.” Hayes v. Snyder, 546 F.3d 516, 523 (7th Cir.
2008). Gray contends that his asthma became worse as a result
of the unsanitary conditions at Stateville, and that he also be-
gan suffering from skin breakouts within six to eight months
of his arrival there. (Bearing in mind that this is a prison-con-
ditions case, not a case about inadequate medical treatment,
this is enough to show some physical injury. Excessive cold,
for example, can also amount to an Eighth Amendment vio-
lation, even if the prisoner has not yet come down with the
flu.)
Asthma, if serious enough, can constitute injury for Eighth
Amendment purposes. See Garvin v. Armstrong, 236 F.3d 896,
898 (7th Cir. 2001) (noting that “[a]sthma, depending upon its
degree, can be a serious medical condition”). Here, there is a
factual dispute over the cause and severity of Gray’s asthma.
The warden tries to avoid it by arguing that Gray conceded
that he cannot prove causation. Gray responded to a question
about whether there are health risks associated with bird feces
No. 13-3413 9
by saying “[t]his is where it gets tricky.” The warden also
notes that Gray has needed treatment only every year and a
half since he entered Stateville, although the medical records
paint a somewhat different picture.
Gray’s statement about the bird feces, however, is not an
admission that he suffered no harm attributable to the unsan-
itary conditions. It is ambiguous. He might have meant that
the situation was tricky because his condition might have
been caused from the cumulative effect of the bird feces and
the other pests. He might have meant that the science is tricky,
but that he could prove the link at trial. Notwithstanding this
inconclusive remark, Gray left no doubt that he was alleging
that his worsened asthma symptoms (as compared to those
he had while at Cook County Jail) resulted from increased
dust and dander. He presented evidence of the infestations
and his worsened health, and he suggested that the timing in-
dicated a causal link.
Gray’s lack of an affidavit from a medical expert does not
doom his pro se claim at this stage. Gray litigated his case
without counsel until this Court recruited counsel for him af-
ter the filing of one round of appellate briefs. The warden as-
serts that the case cannot go forward unless Gray can present
scientific evidence showing the necessary causal relation. He
relies on a case in which an inmate sought damages for future
injury from second-hand smoke exposure. In that situation,
we held, the inmate needed to show “to a degree of reasona-
ble medical certainty” that he actually faced an increased risk
of injury. Henderson v. Sheahan, 196 F.3d 839, 851 (7th Cir.
1999). Gray is not alleging future injury, though, and so Hen-
derson is not helpful. He alleges that he already has suffered
injuries (worsened asthma, skin rash), and he relies on the
10 No. 13-3413
common-sense link between excessive dust, insect dander,
and the like, and compromised breathing. While it surely
would have been better if Gray had been able to locate a med-
ical expert, the fact that he was unable to do so from prison
does not in this situation spell the end of his case.
Gray also alleges that he has suffered psychological harm
from the environment he has described. Although the Prison
Litigation Reform Act, 42 U.S.C. § 1997e(e), bars prisoners
from bringing a suit based only on mental or emotional in-
jury, Gray’s case is not so limited: he also alleges physical in-
jury. Furthermore, we have recognized that “[a]lthough §
1997e(e) would bar recovery of compensatory damages ‘for’
mental and emotional injuries suffered, the statute is inappli-
cable to awards of nominal or punitive damages for the
Eighth Amendment violation itself.” Calhoun v. DeTella, 319
F.3d 936, 941 (7th Cir. 2003) (quoting § 1997e(e)).
In determining whether filth and infestation comparable
to that which Gray experienced would be enough to prove an
Eighth Amendment violation, we have noted that:
Depending on how extensive the infestation
of a prisoner’s cell is, what the infesting pests
are, what odors or bites or risk of disease they
create, what particular psychological sensitivi-
ties the prisoner was known to have (recall Win-
ston’s unreasoning fear of rats in Nineteen
Eighty–Four, a fear exploited by his torturers to
break his spirit without actually touching him,
Lindale v. Tokheim Corp., 145 F.3d 953, 955 (7th
Cir. 1998)), and how long the infestation contin-
ues, a trier of fact might reasonably conclude
that the prisoner had been subjected to harm
No. 13-3413 11
sufficient to support a claim of cruel and unu-
sual punishment even if he had not contracted a
disease or suffered any physical pain.
Thomas v. Illinois, 697 F.3d 612, 614 (7th Cir. 2012). “The poten-
tial psychological harm from living in a small cell infested
with mice and cockroaches is pretty obvious.” Id. at 615.
Gray’s summary judgment materials, we conclude, pre-
sent triable issues of fact for a jury, which must determine the
degree of both physical and psychological harm he suffered
as a result of the infestations and dirt. If the jury finds that
Gray suffered only psychological harm, he will be limited to
nominal and punitive damages.
C
The final hurdle Gray must clear is the need to demon-
strate a triable issue of fact on the question whether the war-
den was deliberately indifferent to his substandard living
conditions. Farmer, 511 U.S. at 834. The warden must have
“kn[own] of and disregard[ed] an excessive risk to inmate
health or safety.” Id. at 837. More than that, the warden must
have been “both … aware of facts from which the inference
could be drawn that a substantial risk of serious harm ex-
ist[ed], and he must also [have] draw[n] the inference.” Id.
Gray does not, however, bear the burden of proving that the
warden “acted or failed to act believing that harm actually
would befall” Gray; it is enough to show that he “acted or
failed to act despite his knowledge of a substantial risk.” Id. at
842. Evidence that the warden “must have known” about the
risk of physical or psychological harm resulting from the un-
sanitary conditions is sufficient for a jury to find deliberate
12 No. 13-3413
indifference. Sanville v. McCaughtry, 266 F.3d 724, 737 (7th Cir.
2001), citing Farmer (511 U.S. at 842–43).
Gray’s grievance demonstrates the prison and warden’s
knowledge of the conditions about which he is complaining.
The response he received was signed by Warden Hardy. The
grievance and response are thus sufficient to create a triable
issue of fact on deliberate indifference. See Vance v. Peters, 97
F.3d 987, 993 (7th Cir. 1996) (“an inmate’s letters to prison ad-
ministrators may establish a basis for § 1983 liability” where
“the communication, in its content and manner of transmis-
sion, gave the prison official sufficient notice to alert him or
her to an excessive risk to inmate health or safety” (internal
quotation marks omitted)). (We note that Warden Hardy does
not rely on Vance v. Rumsfeld, 701 F.3d 193 (7th Cir. 2012) (en
banc), which held, following Ashcroft v. Iqbal, 556 U.S. 662
(2009), that knowledge of subordinates’ misconduct is not
enough for liability. 701 F.3d at 204. Regardless, Gray alleges
that Hardy not only knew about the problems but was per-
sonally responsible for changing prison policies so that they
would be addressed.)
The warden responds that because he started his job in
2009, and Gray experienced asthma attacks only every 18
months or so, he had not been around long enough at the time
Gray complained to have notice of the conditions and Gray’s
resulting health problems. But that assumes that Gray’s griev-
ance was not enough in itself to give him notice, regardless of
the timing of Gray’s latest attack. Even if Gray had never filed
the grievance, a jury could infer that the warden was aware
of the pest infestations in the facility. See Sanders v. Sheahan,
198 F.3d 626, 629 (7th Cir. 1999) (“defendants such as the Sher-
iff and the Director of the Jail can realistically be expected to
No. 13-3413 13
know about or participate in creating systematic jail condi-
tions” such as “inadequate hygiene”). Nothing more is
needed at this stage: the risk of both physical and psycholog-
ical harm is obvious—children are taught the importance of
washing their hands before kindergarten, and the repulsive
nature of cockroaches and mice is hardly subject to dispute.
The warden also argues that the prison took reasonable
steps to address the problems about which Gray complains,
through its trimonthly bird removal program and its monthly
exterminator visits. Gray asserts, however, from his personal
experience, that these efforts were ineffective, perhaps be-
cause the vermin came right back in through the broken win-
dows, perhaps because the frequency was inadequate to ad-
dress the problem, or perhaps for other reasons. Knowingly
persisting in an approach that does not make a dent in the
problem is evidence from which a jury could infer deliberate
indifference.
III
The only loose end we must tie up relates to Gray’s request
that his case be consolidated with Dobbey v. Weilding, a class
action that was certified in the Northern District of Illinois on
February 11, 2014. Dobbey also involves allegations about in-
festations of birds, mice, and cockroaches, and a failure to pro-
vide cleaning supplies. Gray is a member of the class, and
there is no opt-out right because it was certified under Federal
Rule of Civil Procedure 23(b)(2). It appropriately seeks injunc-
tive relief only, and so as presently structured it does not in-
clude Gray’s damages claims. Rather than telling the district
court how these two cases should be coordinated, we think it
best to leave that to the court’s discretion on remand. The
14 No. 13-3413
overlap is evident, and there may be other prisoners in Gray’s
position.
For now, it is enough to say that Gray has presented
enough to defeat summary judgment in the warden’s favor.
We REVERSE the judgment of the district court and REMAND
for further proceedings consistent with this opinion.