briefs present a theory of liability based on the defendants' deliberate indifference to his serious medical needs, Plaintiff's Complaint at P 1, Plaintiff's Br. at 14-15, Plaintiff's Reply Br. at 3-5, the defendants recharacterize the plaintiff's theory as asserting excessive force claims.
The defendants contend that the undisputed facts show that Laseter and Mode never blew smoke in Walker's face. The defendants further argue that, even if the incidents did occur, any harm the plaintiff might have suffered was de minimis and did not rise to the level of a constitutional violation. Finally, Godinez and Fleming maintain that they had no personal responsibility for the alleged constitutional violations, and thus are entitled to summary judgment because supervisory liability does not exist under § 1983.
The plaintiff purports to combine his cross-motion for summary judgment with his response to the defendants' motion. In addition to his own affidavits, Walker points to numerous affidavits submitted by fellow Stateville inmates corroborating Walker's allegations. Because Walker's combined cross-motion and response is in fact only a response to defendants' motion, see infra Part II(D), we consider the defendants' motion first.
A. Standard for Summary Judgment
Under the Federal Rules of Civil Procedure, summary judgment is appropriate if "there is no genuine issue as to any material fact, and . . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). This standard places the initial burden on the moving party to identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (quoting Fed. R. Civ. P. 56(c)). Once the moving party has done this, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). In deciding a motion for summary judgment, the court must read all facts in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Griffin v. Thomas, 929 F.2d 1210, 1212 (7th Cir. 1991).
B. Laseter and Mode
We note as an initial matter that, despite the defendants' attempt to reformulate the plaintiff's theory of the case, this court will refer to the law governing deliberate indifference to serious medical needs in deciding whether the defendants are entitled to summary judgment. Essentially, Walker argues that Laseter and Mode were deliberately indifferent to his serious medical need to avoid the alleged exposures to cigarette smoke, and that Fleming and Godinez were also personally responsible for the alleged incidents.
A prisoner alleging that prison officials inflicted cruel and unusual punishment must prove both a subjective and objective component. Wilson v. Seiter, 501 U.S. 294, 298, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991). In the context of medical needs, "deliberate indifference" satisfies the subjective component and a "serious" medical need satisfies the objective component. Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976).
Recently, the Supreme Court expressly defined "deliberate indifference." Farmer v. Brennan, 128 L. Ed. 2d 811, 114 S. Ct. 1970 (1994). In Farmer, the Court held that a prison official acts with deliberate indifference if he or she acts with criminal recklessness. This state of mind, the Court explained, requires that the official "'consciously disregard' a substantial risk of serious harm." Id. at 1980 (quoting Model Penal Code § 2.02(2)(c) (1985)). Thus, a showing of deliberate indifference to serious medical needs requires a showing of the official's actual awareness of a substantial risk of serious harm. See id. at 1981.
To determine whether the allegedly foregone medical need satisfies the objective component of the Eighth Amendment, we inquire whether, in light of "'contemporary standards of decency,'" the medical need is "'serious.'" Hudson v. McMillian, 503 U.S. 1, 8-9, 117 L. Ed. 2d 156, 112 S. Ct. 995 (1992) (quoting Estelle v. Gamble, 429 U.S. at 104).
The defendants primarily argue that no reasonable factfinder could find that Laseter and Mode ever blew smoke in Walker's face; in the alternative, the defendants assert that any injury suffered by Walker was de minimis. Because the record is riddled with genuine issues of material fact, we deny the defendants' motion. First, the plaintiff detailed his version of the encounters with Laseter in three affidavits, and affidavits from seven other prisoners essentially corroborated the first incident with Laseter. Similarly, the plaintiff's trio of affidavits described Mode's actions, and affidavits from seven other prisoners supported Walker's story.
Although Laseter and Mode deny Walker's assertions, "summary judgment is not a procedure for resolving a swearing contest." Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992). There exists a genuine issue whether Laseter and Mode ever blew smoke in the plaintiff's face.
Furthermore, we decline to hold that the plaintiff's alleged asthmatic attacks were de minimis or failed to constitute a "serious medical need" as a matter of law. On the record before us, the alleged exposures to cigarette smoke inflicted a violent asthmatic attack on Walker, who suffers from several pulmonary illnesses.
We refuse to conclude as a matter of law that Walker's purported medical need to be free from the alleged exposures is not "serious."
Accordingly, we hold that genuine issues of material fact exist regarding whether Laseter and Mode blew smoke in Walker's face and whether Walker suffered a sufficiently "serious" deprivation.
C. Supervisory Liability
Godinez and Fleming move for summary judgment on the additional ground that they had no personal responsibility for the alleged constitutional violations. "To be held liable for conduct of their subordinates, supervisors must have been personally involved in that conduct. . . . The supervisors must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for fear of what they might see. They must in other words act either knowingly or with deliberate, reckless indifference."
Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988) (quoted by Gentry v. Duckworth, 65 F.3d 555, 1995 U.S. App. LEXIS 24370, 1995 WL 509248, *5 (7th Cir. Aug. 29, 1995)). At this stage of the litigation, Godinez and Fleming have proffered nothing to dispute the plaintiff's assertions that he reported Laseter to Fleming and Mode to both Godinez and Fleming. Nor do Godinez and Fleming deny Walker's assertions that they did nothing, a reasonable inference from the allegation that Laseter and Mode continued to commit similar acts. Because a reasonable factfinder could find that the two supervisors turned a "blind eye" to their subordinate's allegedly unconstitutional acts, Godinez and Fleming are not entitled to summary judgment on the basis of lack of personal involvement.
D. Plaintiff's Motion for Summary Judgment
As the discussion above explains, there exist genuine issues of material facts regarding the defendants' liability. Laseter and Mode deny ever blowing smoke in the plaintiff's face; and if Laseter and Mode never committed the alleged acts, then Godinez and Fleming cannot be personally liable for those acts. Accordingly, we deny plaintiff's motion for summary judgment.
E. Appointment of Counsel
As it appears that this case is proceeding to trial, we will appoint counsel pursuant to 28 U.S.C. § 1915(d).
For the reasons set forth above, we deny both parties' motions for summary judgment. It is so ordered.
MARVIN E. ASPEN
United States District Judge