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 Correctional Center, where he has been for the last 15 years. Gray 

sued Stateville’s warden, Marcus Hardy, in his individual capacity under 42 U.S.C. § 1983, alleging that the warden violated 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 Stateville, 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 Amendment. Gray has appealed from the adverse judgment with respect 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. Weilding, No. 13 C 1068 (N.D. Ill.). We conclude that Gray’s individual claims were dismissed prematurely, and so we remand for 

further proceedings. At that point, the district court can decide 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 company 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 contribute 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 permitted to store chemicals such as soap in his cell. He is allowed 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-submitted the grievance to his counselor and finally received an 

answer in April 2012. But it was not a very satisfactory answer. 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 addition, the letter pointed out that Gray’s cellblock was sprayed 

for bugs once a month and that the prison distributed cleaning 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 judgment in favor of the warden. Payne v. Pauley, 337 F.3d 767, 770 

(7th Cir. 2003). We begin, however, with the warden’s argument 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 deliberately indifferent to this state of affairs. Farmer v. Brennan, 511 

U.S. 825, 834 (1994). 

We have identified several situations that meet this demanding 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 sanitation 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, hygienic 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 complaint evaluated as a whole. So we will assume for the sake of 

argument that Gray’s deposition testimony about the cockroaches alone may not describe a sufficiently serious condition 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 contrast, we found no Eighth Amendment violation where a prisoner 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 circumstances. 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 summary 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 fixing those entry points. In fact, Dixon supports Gray’s position,

because the court there took the same holistic view of the conditions 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 indifference 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 concerns 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 discuss 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 began suffering from skin breakouts within six to eight months 

of his arrival there. (Bearing in mind that this is a prison-conditions 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 violation, 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 unsanitary 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 indicated 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 after the filing of one round of appellate briefs. The warden asserts 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 reasonable 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 Henderson 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 medical 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 injury, Gray’s case is not so limited: he also alleges physical injury. Furthermore, we have recognized that “[a]lthough § 

1997e(e) would bar recovery of compensatory damages ‘for’

mental and emotional injuries suffered, the statute is inapplicable 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 sensitivities the prisoner was known to have (recall Winston’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 continues, 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 unusual 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 potential 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, present 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 demonstrate a triable issue of fact on the question whether the warden 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 exist[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 unsanitary 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 administrators may establish a basis for § 1983 liability” where 

“the communication, in its content and manner of transmission, 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 personally 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 grievance 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 Sheriff and the Director of the Jail can realistically be expected to 
No. 13-3413 13

know about or participate in creating systematic jail conditions” such as “inadequate hygiene”). Nothing more is 

needed at this stage: the risk of both physical and psychological 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 because the vermin came right back in through the broken windows, perhaps because the frequency was inadequate to address 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 infestations of birds, mice, and cockroaches, and a failure to provide 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 injunctive relief only, and so as presently structured it does not include 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.