MEMORANDUM OPINION AND ORDER
MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE
Alonzo Jones ("Jones") initially sued 16 state prison officials and employees at Stateville Correctional Center ("Stateville") in this 42 U.S.C. § 1983 ("Section 1983") lawsuit, alleging the officials had visited cruel and unusual punishment on him in violation of the Eighth Amendment.
After suffering the dismissal followed by reversal-and-remand as outlined a bit later in this opinion, the action found its way to this Court's calendar, and the case is at long last ripe for final resolution.
As the first scene in this final act, Jones moved for summary judgment against nine defendants, and all defendants
moved for summary judgment. Further discovery ensued, as the result of which Jones voluntarily dismissed all but four of the defendants: Lex Jones, Donald Knudsen ("Knudsen") and Eugene Krause ("Krause") (collectively "Chief Engineers") and Richard DeRobertis ("DeRobertis"). That has left pending (1) cross-motions for summary judgment between Jones and the Chief Engineers and (2) DeRobertis' motion for summary judgment against Jones. For the reasons stated in this memorandum opinion and order, the Chief Engineers' and DeRobertis' motions are granted, Jones' motion is denied and this action is dismissed.
Jones has been a Stateville inmate since 1977. Until 1981 he worked there as a plumber, often performing services in the Cellhouse B plumbing tunnel. That "tunnel" is five stories high, and work is performed on scaffolding consisting of foot-wide wooden planks spanning the piping.
On January 19, 1981 Jones was performing routine maintenance work on the scaffolding in Cellhouse B (pursuant to his orders) when the board on which he was standing fractured. Jones began to fall, but he was able to stop his fall by grabbing a nearby pipe. In the process he wrenched his back and was struck by a simultaneously falling tool box.
On December 5, 1983 Jones filed his pro se Complaint here. It was assigned to then Chief Judge Frank McGarr, who dismissed the Complaint under 28 U.S.C. § 1915(d) for its having failed to state an Eighth Amendment claim. That dismissal was reversed by our Court of Appeals in the "Opinion," 777 F.2d 1277 (7th Cir. 1985),
which sustained the Complaint's allegation that defendants had acted with reckless disregard of Jones' rights and safety (more on this later). This Court inherited the case on remand.
During the post-remand discovery period Jones attempted to determine which of the 16 defendants potentially bore legal responsibility for his injury. Originally lacking that information, he had joined both "low level" employees (such as the Chief Engineers, who allegedly received complaints directly from scaffold users) and "upper level" people (such as administrative officials who may have had final responsibility for assuring action on such complaints).
Ultimately Jones decided liability could not be attributed to any of the upper level defendants other than DeRobertis. Although Jones had been pursuing summary judgment motions against six upper level defendants (but not DeRobertis), he voluntarily dismissed this action against all upper level people except DeRobertis. That left as defendants only the latter and the three Chief Engineers identified earlier.
Both Jones and the Chief Engineers assert an entitlement to summary judgment on Jones' Eighth Amendment claim.
Opinion at 1280 paraphrased the Amendment's literal prohibition of "cruel and unusual punishment" as denoting "deliberate indifference to a prisoner's safety from physical surroundings." For that purpose Opinion at 1280 n. 5 said:
There must be some indication that, if the matter proceeds beyond this threshold level, such allegations [must] be supported by specific facts such as a history of accidents or a previous request for repairs that had fallen on deaf ears.
Jones has attempted to document such a history, asserting that scaffold boards had broken under him three times before the 1981 accident (Jones Aff. para. 6). Jones says he complained to at least six people, including Krause and Knudsen, about the condition of the scaffolding (id. paras. 7-8). Almost always Krause or Knudsen responded they were "working on it" (id. paras. 9-11). When Jones showed specific boards to Krause, those boards were replaced.
Jones also says he heard Rocco Guglielmucci (his off-time immediate supervisor) complain to Krause -- indeed, Jones says, even more often than he himself did -- and to Knudsen as well. Jones also proffered deposition testimony of three other individuals who complained to either Knudsen, Krause or Guglielmucci about the condition of the scaffolding. Three other individuals confirmed that they overheard Jones or others complaining to Guglielmucci.
There is a dispute as to the number and frequency of complaints the Chief Engineers received. Knudsen admits having received one complaint in 1977, while Krause acknowledges he received Guglielmucci's complaint (but no others), and Lex Jones says he received no complaints at all.
Knudsen forwarded a requisition for replacement boards to the business office promptly after he received the complaint, and he knew of no injuries stemming from catwalk work before he ceased to be Chief Engineer in 1978. Krause says he told Guglielmucci to replace some boards, and he replaced some planks himself.
Even Jones' version of the number and frequency of complaints would not in itself be sufficient to prevail here. Jones must also show the Chief Engineers treated those complaints in a manner reflecting "cruel and unusual punishment" of Jones, a standard explicated post-Opinion in Duckworth v. Franzen, 780 F.2d 645, 652-53 (7th Cir. 1985) (citations, including one to the Opinion, omitted):
If the word "punishment" in cases of prisoner mistreatment is to retain a link with normal usage, the infliction of suffering on prisoners can be found to violate the Eighth Amendment only if that infliction is either deliberate, or reckless in the criminal law sense. Gross negligence is not enough. Unlike criminal recklessness it does not import danger so great that knowledge of the danger can be inferred; and we remind that the "indifference" to the prisoner's welfare must be "deliberate". . . . Although some cases contain language more suggestive of the tort definition of recklessness than of the criminal law definition, . . . they are cases where the prisoner had failed to prove recklessness even in the tort sense, and it was not important therefore whether he would have had to prove even more in order to win the case.