UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION

DEMAJIO J. ELLIS, )

Plaintiff, )

)

v. ) CAUSE NO.: 3:16-CV-561-JEM

)

SGT. BURRIS, et al., )

Defendants. )

OPINION AND ORDER

Thismatteris before theCourt onDefendants’ Motion for Summary Judgment[DE81],filed 

on March 6, 2019. For the following reasons, the motion is granted.

I. Procedural Background

On November 18, 2016, Plaintiff Demajio J. Ellis, a prisoner in Westville Correctional 

Facility, filed an Amended Complaint pro se alleging that Defendants Sgt. Alonzo Burris, Sgt. 

Steven Penning, Officer Daniel Nicksich, and Officer Brandon Mahoney violated his Eighth 

Amendment rights by confining him in unsanitary conditions. On March 6, 2019, Defendants filed 

a Motion for Summary Judgment. Plaintiff filed a response on May 22, 2019, and on June 5, 2019, 

Defendants filed a reply.

The parties filed forms of consent to have this case assigned to a United States Magistrate 

Judge to conduct all further proceedings and to order the entry of a final judgment in this case. 

Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).

II. Summary Judgment Standard

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as 

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

The party seeking summary judgment “bearsthe initial responsibility of informing the district court
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of the basis for its motion and identifying” the evidence that “demonstrate[s] the absence of a 

genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Substantive law 

determines which facts are material; that is, which facts might affect the outcome of the suit under 

the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A party asserting 

that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular 

parts of materials in the record” or “showing that the materials cited do not establish the absence or 

presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 

support the fact.” Fed. R. Civ. P. 56(c)(1).

In ruling on a motion for summary judgment, the court must view all facts in the light most 

favorable to the nonmoving party. Anderson, 477 U.S. at 255. The court will not “make credibility 

determinations, weigh the evidence, or decide which inferencesto draw from the facts; these are jobs 

for a factfinder.” Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). Summary judgment is not a 

substitute for a trial on the merits or a vehicle for resolving factual disputes. Waldridge v. Am. 

Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994). Instead, the court’ssole task in ruling on a motion 

for summary judgment is “to decide, based on the evidence of record, whether there is any material 

dispute of fact that requires a trial.” Payne, 337 F.3d at 770. If a reasonable factfinder could find in 

favor of the nonmoving party, summary judgment may not be granted. Id.

III. Material Facts

The following description islargely adapted fromthe facts alleged in Defendants’ Statement 

of Facts Not in Dispute, which Plaintiff concedes are “correct.” Resp. at 2 [DE 87]. The Court 

construes all facts and draws all inferences in the light most favorable to Plaintiff, the non-movant. 

Plaintiff was housed in a single-person cell in the restrictive housing unit (B-Pod) at the
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Westville Correctional Facility. On January 12, 2016, around 9:10 p.m., Plaintiff was woken up by 

people yelling about the toilets overflowing. Ellis Dep. 9:6-13 [DE 82-2]. He saw that sewage was 

overflowing from histoilet.1 The sewage in Plaintiff’s cell wastwo inches deep and stayed there for 

about six hours. Id. at 10:4-9; 11:6-9. Even after the water was shut off, Plaintiff’s toilet kept 

overflowing periodically due to other inmates flushing their toilets. Id. at 28:11-23. While his cell 

wasflooded, Plaintiff sat on his desk, but would walk barefoot to the door of his cell and back to the 

desk. Id. at 10:17-25.

When the toilets flooded, Defendant Burris was the supervisor in charge of the shift on BPod. Burris reported about the situation to his superior and maintenance was notified. Burris Resp. 

to Interrogs. at 1 [DE 83-3]. Defendant Penning was a Sergeant working in the B-Pod that same 

night. Penning directed his staff to contain the overflowing sewage and kept the shift captain 

updated. Penning Resp. to Interrogs. at 3-4, 7 [DE 83-3]. The inmates were removed one at a time 

from their cells asthe prison staff attempted to clean the cells. Around 2:00 or 2:30 a.m., Defendants 

Mahoney and Nicksich placed Plaintiff in an empty cell to allow him to use the bathroom while they 

mopped and dried his cell. Ellis Dep. at 17:12-24 [DE 83-2]. When they were done, they returned 

Plaintiff to his cell, which was still dirty with refuse from the sewage. Mahoney and Nicksich 

continued this routine with other affected inmates in the B-Pod. Plaintiff eventually used his own 

towel, soap, and shampoo to further clean the cell. Id. at 20:17-18. A total of fourteen restrictive 

housing cells, with an offender in each of them, were flooded, as well as some of the showers.

Penning Resp. to Interrogs. at 1. The flooding was not totally stopped until about 5:45 am. Id. at 5. 

During the flooding, Plaintiff repeatedly asked Mahoney and Nicksich to take a shower, but

1 The flooding was caused by another inmate flushing clothes down the toilet. Ellis Dep. 9:18-25 [DE 82-2].
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they would not let him. Ellis Dep. at 19:19-25 [DE 82-2]. Plaintiff also spoke with Defendant 

Penning, who came down about ten minutes after the flooding. Penning told Plaintiff they that were 

going to handle the flooding, but “we’re not getting bleach and all that, and you know, we’re not 

getting showers.” Id. at 14:15-25; 14:1-16. Plaintiff showered the following afternoon, which was 

consistent with his normal schedule of showering once every three days. Id. at 29:3-12, 19-23.

On January 16, Plaintiff submitted a health care request form indicating that his right foot 

was swollen due to the toilet overflowing. He saw a nurse and was given Tylenol. Id. at 22:18-23. 

His pain lasted “probably about a week, maybe a little over seven days” and then the swelling went 

away. Id. at 21:24-22:1; 23:1-4.

IV. Analysis

The Eighth Amendment prohibits conditions of confinement that deny inmates “the minimal 

civilized measure of life’s necessities.” Townsend v. Fuchs, 522 F.3d 765, 773 (7th Cir. 2008). In 

evaluating an Eighth Amendment claim, courts conduct both an objective and a subjective inquiry. 

Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective prong asks whether the alleged 

deprivation is “sufficiently serious” that the action or inaction of a prison official leadsto “the denial 

of the minimal civilized measure of life's necessities.” Id. Although “the Constitution does not 

mandate comfortable prisons,” Rhodes v. Chapman, 452 U.S. 337, 349 (1981), inmates are entitled 

to adequate food, clothing, shelter, bedding, hygiene materials, and sanitation. Knight v. Wiseman, 

590 F.3d 458, 463 (7th Cir. 2009); Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006). On the 

subjective prong, the prisoner must show the defendant acted with deliberate indifference to the 

inmate’s health orsafety. Farmer, 511 U.S. at 834. Deliberate indifference meansthat the defendant 

“acted in an intentional or criminally reckless manner, i.e., the defendant must have known that the
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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.” Board v. Farnham, 394 F.3d 469, 478

(7th Cir. 2005). In other words, a plaintiff must show that “the official knows of and disregards an 

excessive risk to inmate health or safety; the official must both be aware of facts from which the 

inference could be drawn that a substantial risk of serious harm exists, and he must also draw the 

inference.” Haywood v. Hathaway, 842 F.3d 1026, 1031 (7th Cir. 2016) (quotation marks omitted). 

It is clear that being held for six hours in a cell filled with two inches of sewage would be 

unpleasant. But even if the Court were to assume that Plaintiff’s conditions of confinement rose to 

the level of denying him the minimal civilized measure of life’s necessities, summary judgment is

nevertheless warranted because he has not shown that any Defendant acted with deliberate 

indifference toward his health and safety. To defeat summary judgment, Plaintiff must point to 

evidence that the defendants “acted in an intentional or criminally reckless manner, i.e., [they] 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.” Board, 394 F.3d at

478. In this case, Defendants actively responded to the flooding in theB-Pod. When the toilets began 

to overflow, Burris reported to his superior about the situation and maintenance was notified. 

Penning directed staff to contain the overflowing water and kept the shift captain updated. Mahoney 

and Nicksich were cleaning the inmates’ cells one by one and got to Plaintiff’s cell around 2 or 2:30

a.m. They put him in an empty cell to use the bathroom while they mopped and dried his cell. They 

continued to do the same in each flooded cell, but could not clean the cells totally because the 

flooding was not completely contained.

Plaintiff argues that he should have been immediately relocated and allowed to shower, and
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should have been given bleach. Defendants present evidence that it would have been impractical to 

try to relocate or give showers to all fourteen affected inmates, and that prisoners are not permitted 

to have cleaning chemicals on their own. See Burris Resp. to Interrogs. at 3-5, Penning Resp. to 

Interrogs. at 3-5 [DE 83-3]. Plaintiff has not presented evidence to contradict those points, nor 

shown that the prison was obligated to take those steps. See Dixon v. Godinez, 114 F.3d 640, 642 

(7th Cir. 1997) (“Prison conditions may be harsh and uncomfortable without violating the Eighth 

Amendment’s prohibition against cruel and unusual punishment.”) (citing Farmer, 511 U.S. at 

833–34). Plaintiff was permitted to shower in the afternoon, 18 hours after the flooding began, and 

consistent with his normal schedule of showering once every three days. See Jaros v. Illinois Dep’t 

of Corr., 684 F.3d 667, 671 (7th Cir. 2012) (“[L]imiting inmatesto weekly showers does not violate 

theEighthAmendment.”)(listing cases). AssumingastruePlaintiff’s allegation that he suffered pain 

and swelling in hisfoot because of the standing water, the injury was minimal and quickly resolved, 

and Plaintiff has not presented evidence that any Defendant was aware of the injury or acted with 

deliberate indifference to his health and safety.

V. Conclusion

For the foregoing reasons, the Court hereby GRANTS Defendants’ Motion for Summary 

Judgment [DE 81] and DIRECTS the Clerk to enter judgment in favor of Defendants Sgt. Alonzo 

Burris, Sgt. Steven Penning, Officer Daniel Nicksich, and Officer Brandon Mahoney.

So ORDERED this 20th day of March, 2020.

s/ John E. Martin

MAGISTRATE JUDGE JOHN E. MARTIN

UNITED STATES DISTRICT COURT

cc: All counsel of record 

Plaintiff, pro se