the incident and coordinate their accounts. None of the authors of the incident and
investigatory reports are defendants in this case, nor is there any indication that they were
the subjects of any grievance filed by the plaintiff. The plaintiff will have to prove that
the named defendants were somehow behind the disciplinary investigation.

IV. PERSONAL INVOLVEMENT

The defendants argue that they cannot be held personally responsible either for the
problems with the plaintiff's cells or for his placement in administrative segregation. It is
true that a plaintiff must establish a given defendant’s direct, personal involvement in
violating his constitutional rights. See, e.g., Gentry vy. Duckworth, 65 F.3d 555, 561 (7"
Cir. 1995). In addition, the defendants correctly point out that the doctrine of respondeat
superior (blanket supervisory liability) does not apply to actions filed under 42 U.S.C. §
1983. See Pacelli v. DeVito, 972 F.2d 871, 877 (7" Cir. 1992). But as discussed above,
the plaintiff has made an arguable showing that the alleged violations of his constitutional
rights occurred at the named defendants’ direction or with their knowledge and consent.
See Vance v. Washington, 97 F.3d 987, 991 (7" Cir. 1996), cert. denied, 520 U.S. 1230
(1997) (citations omitted).

It is irrelevant that actual repair work at the prison is performed by the
maintenance staff rather than correctional officers themselves. ‘The plaintiff contends that
he made repeated requests for repairs to each of the defendants, who apparently cither

refused to place work orders or failed to follow through despite the plaintiff's persistent

19


1010, 1013 (7" Cir. 1997). Only if the rights were clearly established may the official be
liable for monetary damages. See Richardson v. McKnight, 521 U.S. 399, 403 (1997)

As recently as March of last year, a fellow district judge noted that the law was
“unsettled” and that “[nJo Seventh Circuit case has held that inadequate lighting can
constitute a violation of a prisoner’s Eighth Amendment rights.” Martin v. Snyder, No.
00 C 0983, 2002 WL 48491], at *6 (N.D. Ill. Mar. 28, 2002). Under the circumstances of
this case, where the plaintiff had ambient light and was able to spend time out of his cell,
the defendants’ failure to rectify the plaintiffs problem—w3ile certainly no cause for
commendation-did not constitute conduct the unlawfulness of which would have been
apparent in light of existing law. Denius v. Dunlap, 209 F.3d 944, 950 (7" Cir. 2000).
The defendants are entitled to qualified immunity on the plaintiffs Eighth Amendment
claim because neither statutes nor case law have established a right of inmates to proper
lighting in their cell. The defendants did not violate a clearly established right.

B. No Running Water

The lack of running water likewise fails to rise to the level of constitutional
magnitude. Again, the plaintiffs basic needs were met; there is no dispute that he was
able to drink water at meals. (See Medera Deposition, /”. at 25.) In addition, the plaintiff
specifically noted in his grievance that he bought bottles of water and was able to shower

once a week. Nor is there any allegation that the plaintiff had no toilet facilities.

13



alia). “[O]nly when the cases are colorable, the facts may be difficult to assemble, and
the law is complex” will judges request an attorney to assist the litigant. DiAngelo v.
Illinois Dept. of Public Aid, 891 F.2d 1260, 1262 (7" Cir. 1989). As an additional
threshold consideration, a litigant seeking appointment of pro bono counsel must show
that he has made a reasonable attempt to retain private counsel, or that he is effectively
precluded from making such efforts. Jackson, 953 F.2d at 1072.

After considering the above factors, the court concludes that appointment of
counsel is not warranted in this case. Although the plaintiff has articulated a colorable
retaliation claim, he has alleged no physical or mental disability that might preclude him
from adequately investigating the facts giving rise to his complaint. See Merritt, 697 F.2d
at 765. Neither the legal issues raised in the complaint nor the evidence that might
support the plaintiff’s claims are so complex or intricate that a trained attorney is
necessary. The plaintiff appears more than capable of presenting his case. It should
additionally be noted that the court grants pro se litigants wide latitude in the handling of
their lawsuits. Therefore, the plaintiff’s motion to reconsider appointment of appointment
of counsel will be denied.

CONCLUSION

IT IS THEREFORE ORDERED that:

(1) The defendants’ motion to strike [#43-1] the plaintiff's brief opposing summary

judgment is denied.

23


D, cell 333. (Complaint, p. 6.) The light switch did not turn on the light in the cell. (/d.)
The plaintiff went through the “chain of command,” complaining to the named
defendants and others that his overhead light did not work. (/d.)

The defendants maintain that, although the cell itself had no working light,
large overhead light fixtures flooded the entire cell area with light. (Griffin
Affidavit, 18.) Cell 333 has open bars which allow the overhead lights to
illuminate the interior of the cell. (/d., { 19; see also Defendants’ Exhibits 16A and
16B, photographs of the area in question.) The plaintiff maintains, however, that his
tier and cell were situated in such a way that ambient light in his cell was almost
non-existent. (Defendants’ Exhibit 1, Deposition of Carlos Medera, ¢r. at 17.)

Over seven months later, on February 18, 2001, the plaintiff filed a grievance
complaining that the staff had failed to rectify the situation. (/d.; see also Unmarked
Grievance attached to Complaint.) The counselor responded, “Per C/O Weck, orders
have been submitted and electrician notified. A/W Vinson contacted per Supt. Griffin;
hopefully lighting will be restored in next 24 hours.” (/d.)

On February 18, 2001, King allegedly went to the plaintiffs cell and said,
“Look, you Spic, by you writing a grievance it will not make me fix your light.”
(Complaint, p. 6.) The plaintiff reported King’s remarks to Griffin, who responded,

“You are a Spic—you ain’t no Caucasian.” (Id.) Both Griffin and King have

* The complaint is in narrative form rather than broken up into separate, numbered
paragraphs.


requests and the passage of weeks. The plaintiff further charges that the defendants
expressly promised to punish the plaintiff for his grievances, intentionally blocking any
repairs and/or exposing him to different problems. At the very least, the defendants might
have moved the plaintiff to a cell that needed no repairs (which he claims they did for
other inmates). The plaintiff has made a triable showing that requests for work orders
were unprocessed, that he was singled out for the denial of bedding, and that he was
placed under a disciplinary investigation shortly after one of the defendants threatened to
“find a way” to engineer his transfer to segregation.

Each of the defendants specifically denies any retaliatory animus, as well as any
personal knowledge of or involvement in the problems the plaintiff was experiencing;
however, the court cannot weigh the parties’ affidavits or make credibility determinations
when ruling on a motion for summary judgment. Castillo y. United States, 34 V.3d 443,
445 (7" Cir. 1994). A trier of fact must resolve the parties’ conflicting stories.

¥. EQUAL PROTECTION

Throughout the complaint, the plaintiff charges that the defendants made
offensive, xenophobic remarks such as that “Spics” do not enjoy plumbing in Central
America. The court recognizes that the use of derogatory racial epithets, while
“unprofessional and inexcusable,” is not actionable under 42 U.S.C. § 1983. Patton vy.
Przybylski, 822 F.2d 697, 700 (7" Cir. 1987). However, in this case the plaintiff contends

not just that the defendants used offensive language, but thal they mistreated him and

20


In sum, for all of the foregoing reasons, summary judgment is granted in favor of
the defendants and against the plaintiff on his conditions and due process claims.
However, because material facts are in dispute, summary judgment is denied as to the
plaintiffs retaliation claim. The plaintiff is granted twenty-one days to show proof of
exhaustion of administrative remedies in connection with his equal protection claim.

As a final concern, the plaintiffs renewed motion for appointment of counsel is
denied. Indigent parties in civil rights actions who are unable to obtain an attorney may
apply to the court for appointment of counsel under 28 U.S.C. § 1915(e)(1). See
McKeever v. Israel, 689 F.2d 1315, 1318 (7* Cir. 1982). However, civil litigants have no
constitutional or statutory right to be represented by counsel in federal court. See Merritt
v. Faulkner, 697 F.2d 761, 763 (7" Cir. 1983); Zarnes v. Rhodes, 64 F.3d 285, 288 (7"
Cir. 1995). The decision to appoint counsel lies within the broad discretion of the court.
Jackson v. County of McLean, 953 F.2d 1070, 1071 (7" Cir. 1992),

In exercising its discretion, a district court is guided by several factors: (1) the
merit of the indigent plaintiffs claims; (2) the plaintiffs ability to investigate crucial
facts; (3) whether the nature of the evidence indicates that the truth will more likely be
exposed if both sides are represented by counsel; (4) the capability of the indigent litigant
to present the case; and (5) the complexity of the legal issues raised. Swofford v.
Maxwell, 969 F.2d 547, 551 (7" Cir. 1992), relying on Merritt v. Faulkner, 697 F.2d 761,

764 (7" Cir. 1983); see also Maclin v. Freake, 650 F.2d 885, 887-89 (7" Cir. 1981) (inter

22



interest in avoiding confinement there. Courts in this district have consistently held that
confinement in segregation in an I[linois prison, under conditions prescribed by Ilinois
Department of Corrections regulations, is not an atypical and significant deprivation in
relation to the ordinary incidents of prison life, See, for example, Leslie v. Doyle, 896 F.
Supp. 771, 773 (N.D. Ill. 1995). ‘Thus, the plaintiff cannot recover damages for his
placement in investigative segregation on the grounds that the placement denied him due
process.

I. RETALIATION

Although the claims discussed above are not inherently actionable as constitutional
violations, the plaintiff has articulated a colorable claim of retaliation. Contrary to the
defendants’ representations, it is well established that punishing an inmate for filing
grievances violates his constitutional rights, even if the retaliatory action would not
otherwise independently violate the Constitution. See, e.g., Babcock v. White, 102 F.3d
267, 275 (7" Cir. 1996).

In this case, the plaintiff claims that the defendants refused to fix the problems in
his cells because his grievances annoyed them. The defendants deny the plaintiff's
charges, but viewing the evidence in the light most favorably to the plaintiff, a reasonable
person could find that the plaintiff was the victim of retaliation. In his grievances, the
plaintiff speculated whether he was the victim of retaliatory animus; in his sworn

complaint, the plaintiff maintains that the defendants affirmatively stated that they were

17


Upon his release from the segregation unit, the plaintiff returned to the D Unit,
where he was placed in cell 747. (Complaint, p. 8.) Although the plaintiff's cellmates
were issued sheets, pillow cases and blankets, the plaintiff received no bedding. (/d.)
The plaintiff asked the defendant King why he had no bedding and was told there
were no Sheets for him. (Jd; see also Affidavit of Inmate Luis Macedo, attached to
Plaintiff's Motion to “Amend.”) ‘The plaintiff filed another grievance on October 25,
2001. (/d.; see also Grievance Attached as Unmarked Exhibit to Complaint.) In response
to urging from the plaintiffs counsclor, King gave the plaintiff sheets and a pillow;
however, he refused to provide the plaintiff with a blanket. (Complaint, p. 8.) The
plaintiff had to file another grievance in order to obtain a blanket. (/d.; see also
Grievance Officer’s Report attached as Unmarked Exhibit to Complaint.) The plaintiff
caught a cold and believes that he became ill on account of the inadequate bed covering.
(Complaint, p. 8.)

DISCUSSION

The defendants’ motion for summary judgment will be granted in part and denied
in part. The plaintiff has no actionable Eighth Amendment claim with respect to the
conditions of his confinement; nor does he have a viable due process claim under the
Fourteenth Amendment in connection with his placement in investigative segregation.
However, because material facts are in dispute, a trier of fact must determine whether the

defendants retaliated against the plaintiff for filing grievances. The plaintiff is ordered to


However, the plaintiff maintains that no one has been placed in the cell since he was
housed there. The defendants further maintain that the cell’s water worked “except
for minor repairs and leaks from time to time.” (Griffin Affidavit, 421.) The
plaintiff and his cellmate, in contrast, assert that the cell had no water whatsoever.
(Complaint, p. 7; see also Espinoza Affidavit, { 2.) When the plaintiff complained to
King, he supposedly said, “Spics do not have running water in Central America, so
why should you expect water here?” (Complaint, p. 7; Espinoza Affidavit, 4] 4.)

The plaintiff spent the summer months without running water and claims to have
suffered from dehydration. (Complaint, p. 7.). However, while the plaintiff was confined
in Cell D-732, he was able to drink water at least at meals and possibly in the exercise
area. (Defendants’ Exhibit 1, Deposition of Carlos Medera, «”, at 25-26.) The plaintiff
was also able to buy bottled water in the prison commissary and was permitted to shower
once a week. (Grievance attached as Unmarked Exhibit to Complaint.) During the time
period in question, the plaintiff had sufficient strength to play basketball and handball and
lift weights. (Medera deposition, ir. at 25.)

The plaintiff filed a grievance regarding the lack of water on October 24, 2001.
(Complaint, p. 7; Grievance attached as Unmarked Exhibit.) On October 28, 2001, the
counselor denied the grievance as moot because the plaintiff had been moved to another

cell, D-747. (Id.)

* The plaintiff’s deposition does not make clear whether some or all of the
drinking fountains in the recreation yard were broken.

6



submitted affidavits denying that they ever referred to the plaintiff or any other
inmate as a “Spic.” See King Affidavit at {{ 4-6; Griffin Affidavit, {{ 6-9. The
plaintiff, in turn, has submitted affidavits from fellow inmates confirming that the
defendants routinely made disparaging, anti-Latino remarks. (Document numbers
41 and 42, Affidavits of Inmates Carlos Espinoza and Elia Gomez.)

On an unspecified date, the plaintiff wrote a follow-up note to his counselor.
(Unmarked Exhibit to Complaint.) ‘The plaintiff advised her that although the light was
supposed to have been fixed within twenty-four hours, two more months had passed
without any effort at repair. (/d.) The counselor forwarded the plaintiff's letter to
Assistant Warden Vinson, adding the notation, “Can we get a light for this cell? It has
been out since July 2000.” (/d.) The plaintiff also apparently filed a second grievance
regarding the inadequate lighting, which was denied as moot when he was moved to a
different cell. (See complaint at p. 6; attached exhibits.)

After the plaintiff filed the second grievance, Vincent, Griffin and King went
to his cell. Griffin purportedly told the plaintiff, “Listen, Spic, I am going to have
you moved, but only after I hear from the Grievance Officer-and don’t expect a
better cell.” (Complaint, pp. 6-7.)

On May 29, 2001, the plaintiff was placed in Cell 732 in the same unit.
(Grievance Officer’s Report, attached as Unmarked Exhibit to Complaint.) According to

the defendants, Cell D-732 was not a “condemned” cell. (Griffin Affidavit, {| 21.)



going to punish him for filing so many grievances. The fact that the plaintiff went from
one cell without a working light to another without working plumbing, that he alone out
of three cellmates was singled out for not receiving sheets, that his requests for repairs
went unaddressed so unreasonably and suspiciously long, that he was transferred to
“condemned” cells, and that he was placed in segregation only days after the defendant
King purportedly promised “to figure out a way” to do so, all could support the could
conclusion that the plaintiff's protected activity was a substantial or motivating factor in
the defendants’ actions [or inaction]. While the defendants declare that the record fails to
set forth a chronology of events from which retaliation could be inferred, see, e.g.,
Abrams v. Walker, 307 F.3d 650, 657 (7" Cir. 2002), the court disagrees.

Of course, in order to prevail on his claims, the plaintiff will ultimately have to
establish by a preponderance of the evidence that the defendants’ treatment would have
been different absent any retaliatory motive. See Babcock, 102 F.3d at 275, citing Mt.
Healthy City School District v. Doyle, 429 U.S. 274, 287 (1977). ‘The court questions
why the plaintiff's grievances about problems with his cells would have so infuriated the
defendants, who were not personally named in the grievances, punished for any
transgressions, or burdened with the responsibility of making the necessary repairs.

Furthermore, for the disciplinary investigation to have been motivated by
retaliatory animus, all of the correctional officers who wrote reports about the suspicious

sequence of events on the recreation yard would have had to conspire together to fabricate

18


An investigative report issucd the same date notified the plaintiff that he was being
placed on investigative status pending charges of violating prison rules 104 (Dangerous
Contraband) and 406 (Trading and Trafficking) in connection with the above-mentioned
incidents. (Defendants’ Exhibit 14C.)

‘The plaintiff was released from segregation thirty-seven days later, but only after
he went on a hunger strike and demanded to speak to the Crisis Team. (Complaint, p.7.)
An investigator issued a memorandum dated October 9, 2001, concluding that there was
insufficient evidence to charge the plaintiff with a prison infraction. (Defendants’ Exhibit
15, Memorandum from Internal Affairs Unit to Adjustment Committee.)

On September 28, 2001, the plaintiff sent the facility’s medical director a request
to see an cye doctor. (Defendants’ Exhibit 7, letter from plaintiff to Dr. Smith.) The
plaintiff complained of headaches and an ability to focus when he read. (/d.) On October
11, 2001, the plaintiff had a consultation with an optometrist. (Defendants’ Exhibit 4,
Affidavit of Thomas Bialecke, O.D., 4 5.) Although the plaintiff had 20/20 vision both
“far and up close,” Bialecke prescribed low power reading glasses. (/d., 6.) Bialecke
suspected that the plaintiff was merely suffering from “lower accommodation” (an
evidently temporary condition brought on by detailed work or reading over a long period
of time). Ud.) According to Bialecke, “[b]ased upon a reasonable degree of medical
certainty,” the absence of a light fixture in the plaintiff's cell would not have “caused or

amplified in any way” the plaintif{’s need for eye glasses. (/d., 7.)


(2) The clerk is directed to terminate the defendants’ motion for an extension of time to
file a reply brief [#43-2], as that motion was previously granted.

(3) The plaintiffs motion for leave to amend [#45], which the court is treating as a
motion to supplement his brief opposing summary judgment, is granted.

(4) The defendants’ motion for summary judgment [#27] is granted in part and denied in
part. At the close of the case, the clerk is directed to enter judgment in favor of the
defendants and against the plaintiff on his conditions and due process claims pursuant to
Fed. R. Civ. P. 56. The plaintiff may proceed on his retaliation claim, however.

(5) The plaintiff's motion to reconsider appointment of counsel [#36] is denied.

(6) The plaintiff is ordered to show good cause in writing why his equal protection claim
should not be dismissed pursuant to 42 U.S.C. § 1997e(a) for failure to exhaust
administrative remedies prior to bringing suit. Failure to show cause within twenty-one

days will result in summary dismissal of the plaintiffs claim that he was treated

because he is of Hispanic des¢ent.

hic

Harry D. Leinenweber

differently than other inm;

ENTER:

United States District Judge

24


Minute Order Fore (06/97)

United States District Court, Northern District of [linois

igned Judge | PARRY D, LEINENWEBER | Sitting Judge it Other
trate Judge . “ than Assigned Judge LD
CASE NUMBER 02 C 1064 DATE athe JE ADO 3
CASE Carlos Medera, #B-71886 vs. Assistant Warden Ving etal.
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.

DOCKET ENTRY:

(1) Qa Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion duc

G) Oo Answer brief to motion due . Reply to answer brief due.

(4) oD Ruling/Hearing on _setfor at

(5) i) Status hearing[held/continued to] {set for/re-set for] on setfor at

(6) Qa Pretrial conference{held/continued to] [set for/re-set for] on set for at

(7) oO Trial[set for/re-set for] on at

(8) Oo [Bench/Jury trial] [Hearing] held/continued to at

(9) a} This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

ClFRCP4(m) General Rule 21 COFRCP41(a)(1) OO FRCP41(a)(2).

(10) | (Other docket entry] For the reasons set forth in the accompanying Memorandum Opinion and Order: (1) The
defendants’ motion to strike [#43-1] is denied. (2) The clerk is directed to terminate the defendants’ motion for an
extension of time to file a reply brief [#43-2], as that motion was previously granted. (3) The plaintiffs motion for feave
to amend [#45], which the court is treating as a motion to supplement his brief opposing summary judgment, is granted.
(4) The defendants’ motion for summary judgment [#27] is granted in part and denied in part. The plaintiff may proceed
on his retaliation claim; however, at the close of the case, the clerk is directed to enter judgment in favor of the
defendants and against the plaintiff on his conditions and due process claims pursuant to Fed. R. Civ. P. 56. (5) The
plaintiff's motion to reconsider appointment of counsel [#36] is denied. (6) The plaintiff is ordered to show good cause
in writing, within twenty-one days of the date of this order, why his equal protection claim should not be dismissed
pursuant to 42 U.S.C. § 1997e(a) for failure to exhaust administrative remedies as to that claim prior to bringing suit.

a For further detail, see attached Memorandum Opinion and Order. ¢

No notices required, advised in open court. X Document
. Number
No notices required. .
uber of notices
Notices mailed by judge's staff. a
oe Fal TM 20)
Notified counset by telephone. wucsnaads 103
Y | Pocketing to mail notices.
Mail AO 450 form, wenn “yy
Copy to judge/magistrate judge.
date alied goice
courtroom
mim deputy’s
initials
Date/time received in
central Clerk's Office inating deputy initials



A. Inoperative Light

The lack of a working light in the plaintiff's cell did not exceed “contemporary
bounds of decency.” It is inexcusable that the defendants, for at least seven months,
failed to address the plaintiff's complaints that he had no light in his cell. Nevertheless,
while the cell itself had no working light, the defendant Griffin’s exhibit and the photos
submitted as exhibits establish that large overhead light fixtures illuminated the entire cell
area [although the plaintiff disputes how much light passed into the interior of his cell].
Furthermore, because the housing unit was non-disciplinary, the plaintiff presumably
would not have been confined to his cell during most of the day. [At his deposition, he
mentioned going to meals and the gym.]

Given that the totality of the plaintiff’s conditions of confinement were otherwise
acceptable [there is no allegation that his basic needs were not being met], the lack of an
overhead light fails to fall so far below minimum standards as to violate the Eighth
Amendment. The matter does not rise to the level of cruel and unusual punishment.
Contrast Harris v. Fleming, 839 F.2d 1232, 1235 (7" Cir. 1988) (“inmates cannot expect
the amenities, conveniences and services of a good hotel”), with Jackson v. Duckworth,
955 F.2d 21, 22 (7" Cir. 1992) (objective component met where prison conditions were
“strikingly reminiscent of the Black Hole of Calcutta”).

As an additional bar to recovery, because the plaintiff suffered no real physical

injury—only understandable frustration—he has no compensable damages under the Civil

121


show cause why his claim of discrimination based on his race or ethnicity should not be
dismissed for failure to exhaust administrative remedies with respect to that claim.
L_ CONDITIONS

The Eighth Amendment imposes on prison officials the duty to “provide humane
conditions of confinement. ...” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting
Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). However, prison conditions violate the
Eighth Amendment only when they exceed “contemporary bounds of decency of a
mature, civilized society.” Lunsford v. Bennett, 17 F.3d 1574, 1579 (7" Cir. 1994), citing
Jackson v. Duckworth, 955 F.2d 21, 22 (7" Cir. 1992).

In order to establish Eighth Amendment liability, a plaintiff must meet two
requirements: first, he must show that the challenged conditions of confinement were
objectively so serious as to amount to the denial of a basic human need; second, he must
show that the defendant official acted with deliberate indifference. Farmer, 511 U.S. at
834. As the Court of Appeals has explained, “the Eighth Amendment does not apply to
every deprivation, or even every unnecessary deprivation, suffered by a prisoner, but only
to that narrow class of deprivations involving ‘serious’ injury inflicted by prison officials
acting with a culpable state of mind.” Snipes v. DeTella, 95 F.3d 586, 590 (7" Cir. 1996).
In this case, Plaintiff has not satisfied the objective prong required for Eighth Amendment

liability.

10



On September 4, 2001, the defendant King warned the plaintiff, “I am going
to walk you to segregation as soon as | figure out a way.” (Complaint, p. 7.)

Five days later, on September 9, 2001, the plaintiff was placed on investigative
status and moved to administrative segregation. (Grievance Officer’s Report, attached as
Unmarked Exhibit to Complaint.) The plaintiff received no disciplinary ticket and claims
to have broken no rules. (Complaint, p. 7.) However, an incident report dated September
9, 2001, written by an Officer Slaughter stated:

On the above date and appx. time c/o Terry informed this Investigator that
he (Terry) observed Inmate Swift, R00632, digging in the mud in the D & C
small yards. This Investigator and Major Quijano conducted a search of
mentioned area and discovered two (2) metal rods; one appx. 5% inches in
length and the other appx 5° inches in length. During this search this
Investigator observed inmate Swift exchange shoes with inmate Medera,
B71886. Both inmates were escorted to segregation. End of report.

(Defendants’ Exhibit 14A, Incident Report.)
Another incident report by a tower officer corroborated:

ON ABOVE DATE AND APPROX. TIME WHILE D HSE 7 GALLERY INMATES
WERE ON THE SOUTH SMALL YARD, THIS R/O FROM TOWER 12, OBSERVED
ABOVE INMATE [SWIFT] STOMPING IN THE MUD AND REACHING DOWN FOR
APPROX. 15 MINUTES. THIS R/O NOTIFIED C/O BROOKER OF THE UNUSUAL
SITUATION. AT APPROX. 1:15 PM MAJOR QUIJANO AND C/O SLAUGHTER
ARRIVED TO THE SAID YARD TO SEARCH IN THE IMMEDIATE AREA WHERE
SAID INMATE WAS STOMPING. C/O SLAUGHTER DISCOVERED ONE 5!”
SCREW LIKE ROAD AND ONE 5%” SCREW LIKE ROD PLANTED IN THE MUD
WHERE SAID INMATES’ FOOT PRINTS WERE LOCATED. SAID INMATE ALONG
WITH ONE OTHER INMATE WERE HANDCUFFED AND ESCORTED TO SEG BY
SAID MAJOR AND OFC. SLAUGHTER. ABOVE CONTRABAND WAS SEIZED AND
INVENTORIED WITH INVESTG. ALL AUTHORITIES WERE NOTIFIED.

(Defendants’ Exhibit 14B.)


refused to address his complaints because he is Hispanic. Obviously, the Constitution
protects persons of Latin American descent from discrimination by state officials. See,
e.g., Perez vy. Lane, 794 F. Supp. 286, 288 (C.D. Ill. 1992).

Nevertheless, the record does not make clear whether the plaintiff exhausted
prison administrative remedies as to that claim. The Prison Litigation Reform Act of
1996 (“PLRA”) contains a “comprehensive administrative exhaustion requirement” that
states, “[n]o action shall be brought with respect to prison conditions . . . by a prisoner. . .
until such administrative remedies as are available are exhausted.” 42 U.S.C. §
1997(e)(a); see also Booth y. Churner, 531 U.S. 956 (2001). The plaintiff did file
grievances in connection with the matters discussed in preceding paragraphs. However,
in reviewing those grievances, the court finds no mention whatsoever of the plaintiff's
heritage, nor any references to racial slurs.’ The plaintiff must accordingly show proof of
exhaustion of administrative remedies with respect to his equal protection claims.
Otherwise, the court cannot reach the substantive merit of the plaintiffs discrimination
claim. Accord, see Perez v. Wisconsin Department of Corrections, 182 F.3d 532, 535 q7"

Cir. 1999).

“ In fact, the plaintiff's failure to raise the specter of discrimination during the
grievance process tends to cast doubt on his current allegations. It is surprising that, at
the grievance stage, the plaintiff failed to mention the shocking remarks he now attributes
to the defendants. But as noted above, the court will not resolve issues of credibility in
ruling on a summary judgment motion.

21


sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celofex, 477 U.S. at 322. “Where
the record taken as a whole could not lead a rational trier of fact to find for the non-
moving party, there is no ‘genuine issue for trial.’” Chiaramonte v. Fashion Bed Group,
Inc., 129 F.3d 391, 393 (7" Cir. 1997), cert. denied, 523 U.S. 1118 (1998).

Disputed facts are material if they might affect the outcome of the suit. First Ind.
Bank v. Baker, 957 F.2d 506, 507-08 (7 Cir. 1992). The inquiry is essentially “whether
the evidence presents a sufficient disagreement to require submission to the jury, or
whether it is so one-sided that one party must prevail as a matter of law.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (citations omitted).

FACTS

The plaintiff is a state prisoner, confined at the Stateville Correctional Center at all
times relevant to this action. (Complaint, p. 2, Section I, “Plaintiff(s);” Defendants’
Exhibit 13, “Inmate Occupancy History Inquiry.”) The defendant Robert Griffin is a unit
superintendent at Stateville. (Defendants’ Exhibit 3, Affidavit of Robert Griffin, 4 5.)
The defendant Peter King is a lieutenant at the prison. (Defendants’ Exhibit 2, Affidavit
of Peter King, 2.)

The following facts are uncontested for purposes of this motion (disputed facts

are in bold print): On or about July 7, 2000, the plaintiff was placed in Stateville’s Unit



Furthermore, although the plaintiff asserts that he suffered from dehydration, his
medical records reflect no visits to the health care unit seeking treatment for dehydration.
The plaintiff concedes that he was never ill enough to require medical treatment, although
he insists that his dehydration caused severe discomfort. See Plaintiff's Local Rule
56.1(A)(3) Filing, § 37; Plaintiff's Deposition, ¢r. 37, 42. Moreover, the plaintiffs
physical activity during the time period in question belics his assertion that he was
dehydrated: he conceded at his deposition that he had sufficient strength to play
basketball and handball and lift weights. (/d.)

Under the circumstances of this case, no reasonable person could find that the
denial of a cell with running water caused the plaintiff physical injury. It was surcly
chafing for the plaintiff to have his complaints go unaddressed. However, his
confinement in a cell without running water, while undoubtedly inconvenient, is not
actionable under 42 U.S.C. § 1983. Compare Easter v. Cooper, No. 91 C 4520, 1995 WL.
109343, at *3 (N.D. IIL. Mar. 10, 1995) (inmate placed in a cell with graffiti and no
running water for seven days had no cognizable constitutional claim); contrast Johnson v.
Pelker, 891 F.2d 136, 139-40 (7" Cir. 1989) (leaving a prisoner in a cell for three days
without running water, dry clothing, bedding, or cleaning supplies, and in which feces
were smeared on the walls, may fall below the threshold of decency set by Eighth
Amendment). In this case, the lack of running water did not threaten the plaintiffs

physical or mental well-being.

14



pending an investigation or until a hearing can be convened. Hewitt v. Helms, 459 U.S.
460 (1983). Illinois’ prison regulations governing investigative segregation do not confer
a liberty interest on prisoners to remain free of investigation segregation. Cain v. Lane,
857 F.2d 1139, 1144 (7" Cir. 1988). Neither an extension of investigative confinement
nor a delay in completing an investigation violate an inmate’s civil rights. Oswalt v.
Godinez, 894 F.Supp. 1181, 1185-86 (N.D. HI. 1995).

The plaintiff should have—and seems to say that he did not—receive a copy of the
investigative report; he also should have~but evidently was not-charged or released
within thirty days. Nevertheless, the plaintiff has no cognizable due process claim. It
should be noted that violations of state statutes or prison regulations are not, in and of
themselves, actionable as constitutional torts. See, for example, Rowe v. DeBruyn, \7
F.3d 1047, 1051 (7" Cir. 1994), cert. denied, 513 U.S. 1994 (1994). The procedural due
process requirements of Wolff v. McDonnell, 418 U.S. 539, 563-67 (1976), extend only to
disciplinary hearings and only then if the punishment imposed constitutes “an atypical or
significant hardship in relation to the ordinary incidents of prison life.” See Sandin v.
Conner, 515 U.S. 472, 484 (1994).

Placement in administrative segregation is not an atypical or significant hardship.
In Williams v. Ramos, 71 F. 3d 1246, 1249-50 (7" Cir. 1995), the Court of Appeals for
this circuit held that conditions in the segregation unit at Stateville “do not greatly exceed

what one could expect from prison life generally,” and that the plaintiff had no liberty

16



alternative, to strike the plaintiffs response to their motion for summary judgment is
denied as moot. Although the plaintiff’s brief was not in compliance with Local Rule
56.1 or the court’s cautionary instructions, see Minute Order of September 3, 2002, the
court has considered the plaintiff's response. Nevertheless, the plaintiff is advised for
future reference that even pro se litigants must comply with basic filing requirements.
The plaintiff’s motion for leave to amend, which the court construes as a motion to
supplement his opposing brief, is granted. The court has taken into account the additional
affidavit of inmate witness Luis Macedo.

Turning to the summary judgment motion itself, the standards governing such
motions are familiar: summary judgment “shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Prime Northgate Plaza Ltd. Partnership v. Lifecare
Acquisitions Corp., 985 F. Supp. 815, 817 (N.D. Ill. 1997). In determining whether
factual issues exist, the court must view all the evidence and draw all reasonable
inferences in the light most favorable to the non-moving party. Walker v. Northeast
Regional Commuter Railroad Corp., 225 F.3d 895, 897 (7" Cir. 2000).

However, Rule 56(c) “mandates the entry of summary judgment, after adequate

time for discovery and upon motion, against a party who fails to make a showing


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
FILED

. JAN 1 4 2003
5}

JUDGE HARRY D. LEINENWEBER
U.S. DISTRICT COURT JUDGE

CARLOS MEDERA, #B-71886,

Plaintiff,
NO. 02 C 1064

Vv.

ROBERT GRIFFIN, et al. HON. HARRY D. LEINENWEBER

dd

Defendants.
MEMORANDUM OPINION AND ORDER

The plaintiff, a state prisoner, has brought this pro se civil rights action pursuant to
42 U.S.C. § 1983. The plaintiff claims that the defendants, two officers at the Stateville
Correctional Center, violated the plaintiff's constitutional rights by retaliating against him
for his grievances, by denying him due process and equal protection, and by subjecting
him to cruel and unusual conditions of confinement.' For the reasons stated in this order,
the motion will be granted in part and denied in part.

As preliminary matters, the court must address motions concerning the summary
judgment briefs. The clerk is directed to terminate the defendants’ motion for an
extension in which to file a reply brief. That motion appears as a pending motion on the
court’s docket although it was previously granted by Minute Order of November 14,

2002. The defendants subsequently filed their reply brief. The defendants’ motion, in the

* By Minute Order of February 19, 2002, the court dismissed the complaint as to
all other claims, along with one defendant sued in his supervisory capacity.

LY]



Rights Act. The Prison Litigation Reform Act dictates that “[n Jo l'ederal civil action may
be brought by a prisoner ... for mental or emotional injury suffered while in custody
without a prior showing of physical injury.” 42 U.S.C. § 1997e(e); see also Zehner v.
Trigg, 133 F.3d 459, 461 (7" Cir. 1997) (upholding the constitutionality of 1997e(e)).

See generally, Robinson v. Page, 170 F.3d 747 (7" Cir. 1999). An optometrist has
submitted an affidavit attesting that poor lighting would not have adversely affected the
plaintiff's eyesight. The plaintiff is not entitled to damages for going without an interior
cell light.

Even assuming that the headaches the plaintiff claims to have suffered on account
of the inadequate lighting amounted to a physical injury, the defendants are entitled to
qualified immunity. Under the doctrine of qualified immunity, state officials “are
shielded from liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Anderson v. Creighton, 483
US. 635, 638 (1987); Wilson v. Layne, 526 U.S. 603, 609 (1999). To evaluate a claim of
qualified immunity, the court must engage in a two-step analysis. l'irst, the court
determines whether the plaintiff’s claim states a violation of his constitutional rights. The
court then determines whether those rights were clearly established at the time the alleged

violation occurred. See Wilson, 526 U.S. at 609; Khuans v. Sch. Dist. 110,123 F.3d

12



C. Denial of Bedding

For all of the same reasons discussed above, the denial of sheets, a pillow and
blanket is not actionable as an Eighth Amendment claim. ‘The deprivations were
temporary: two weeks without sheets and a pillow and about five weeks without a
blanket. Moreover, the denial of proper bedding was not coupled with extremely cold
temperatures (the problem took place during the months of October and November and
there is no allegation that the unit was improperly heated). Compare Wrice v. Godinez,
No. 94 C 3427, 1996 WL 6563, at *1 (N.D. Ill. Jan. 5, 1996) (no liability for cold cell in
the absence of conditions that had a “mutually reenforcing effect” causing the deprivation
ofa human need). The denial of bedding did not violate the plaintiff's constitutional
rights and did not cause any real harm.

The claim must also fail because the plaintiff has failed to demonstrate any
physical injury, as required by 42 U.S.C. § 1997e(e). It should be noted that the
plaintiff's contention that he caught a cold due to the lack of bed covering is unsupported
by medical evidence. The court is aware of no medical authority corroborating the
plaintiffs apparent contention that sleeping without a blanket causes one to catch a cold.

IL, PLACEMENT IN ADMINISTRATIVE SEGREGATION

The plaintiff's placement and extended confinement in administrative segregation
implicated no due process protections. It has long been recognized that prison officials

are authorized to place inmates suspected of wrongdoing in administrative segregation

15