an excessive risk to inmate health or safety" to be considered deliberately indifferent. Id. at 1979.
De La Paz argues that his medical condition requires that the defendants allow him to shower every day of the week. The only evidence he produces in support of his argument are the 1987 and 1990 memoranda from Dr. Mueller. These "stale" memoranda are problematic because they predate De La Paz's stay at Joliet by six and three years respectively. De La Paz essentially asks the Court to impose liability on the defendants merely because years ago one physician recommended he be afforded daily showering privileges.
The defendants knew of De La Paz's serious medical need but cannot be said to have disregarded it. The defendants produced medical progress notes which show that Joliet's medical staff repeatedly considered De La Paz's current medical condition, and made special provisions for him. The medical records from 1994 and IDOC letters from 1996 indicate De La Paz's treatment for hepatitis. In addition, De La Paz was given medical permission to shower two, and on many occasions, three times per week, more frequently than ordinary inmates. Moreover, the defendants produced the affidavit of Dr. Cullinan, which stated that "Mr. De La Paz's condition is not a life threatening condition," nor is it "worsened by only receiving three showers a week."
Rule 56(e) requires the nonmovant to go beyond the pleadings and show that there is a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Having had a full and fair opportunity for discovery, De La Paz offers no contemporaneous medical testimony to support his claim that daily showers were medically required while he was at Joliet. De La Paz's own disagreement with the defendants' assessment of his medical requirements is insufficient to show that they have been deliberately indifferent to an excessive risk to his health. The defendants repeatedly considered De La Paz's current condition and gave him special showering privileges, though they may not have been the privileges for which De La Paz wished. De La Paz has not produced any evidence suggesting that the denial of more frequent showers has endangered or caused a deterioration in his health, or any other evidence demonstrating the requisite "deliberate indifference" by defendants Cooper and Clark. The Court cannot conclude that a reasonable jury could find that the defendants have ignored De La Paz's serious medical needs, and therefore grants summary judgment for the defendants on De La Paz's Eighth Amendment claim.
The defendants are entitled to summary judgment on the Eighth Amendment claim for another reason as well--qualified immunity. "Under the doctrine of qualified immunity, government officials performing discretionary functions are shielded from liability for civil damages if 'their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Wilson v. Formigoni, 42 F.3d 1060, 1064 (7th Cir. 1994) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982)). The determination of whether a right was clearly established "'focuses on the state of the law at the time of the alleged violation.'" Williams v. Anderson, 959 F.2d 1411, 1414 (7th Cir. 1992) (quoting Zook v. Brown, 748 F.2d 1161, 1164 (7th Cir. 1984)). The Seventh Circuit has determined that one shower a week is constitutionally sufficient for healthy inmates, Davenport v. DeRobertis, 844 F.2d 1310, 1316-17 (7th Cir. 1988), and we have not found any case holding that inmates with medical conditions such as De La Paz's are constitutionally entitled to more frequent bathing. Here, the defendants went beyond what was constitutionally sufficient for healthy inmates in Davenport, and repeatedly extended De La Paz three-times-a-week showering privileges. Therefore, in light of the case law, De La Paz cannot demonstrate that there was a "clearly established" right to shower more frequently than once, much less three times a week. The defendants are entitled to qualified immunity on the Eighth Amendment claim.
III. Equal Protection Claim
De La Paz claims that a genuine issue of material fact exists regarding whether the decision of defendants Cooper and Clark to deny his request for transfer to the honor dorm was motivated by racial animus. He argues that the defendants, who are African-American, denied his transfer request not because he failed to meet the "established criteria," but because he is Indian-American/Mexican-American. He claims that other inmates who do not square with Joliet's established criteria for dorm placement, such as those with distant release dates, in fact reside in the honor dorm.
De La Paz's allegations adequately state an equal protection claim. "Absent a compelling state interest, racial discrimination in administering prisons violates the Equal Protection Clause of the Fourteenth Amendment." Black v. Lane, 824 F.2d 561, 562 (7th Cir. 1987) (citing Wolff v. McDonnell, 418 U.S. 539, 556, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974)). However, to survive summary judgment De La Paz must go beyond his pleadings and produce evidence that would permit a rational factfinder to find in his favor. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). "A plaintiff 'must demonstrate intentional or purposeful discrimination' to show an equal protection violation." Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir. 1982) (citation omitted).
To support his claim, De La Paz relies on certain passages from page four of his pro se Amended Complaint, which was filed on November 15, 1994 (Pl.'s Ex. E). The complaint alleges that there are close to one hundred beds in the honor dorm, but only two to four inmates with Latin/Hispanic names and no Indian-Americans. The Amended Complaint also lists the names and racial classifications of seventeen inmates who reside in the honor dorm yet fail to meet the established criteria because they have very lengthy sentences. The Amended Complaint is not sworn or verified in any way, and thus generally has no evidentiary value.
In a supplemental response to the defendants' reply brief, De La Paz also submits the affidavit of fellow inmate Philip Parker, dated January 10, 1995.
Parker's affidavit is contradictory and confusing. For instance, it first states that housing within the honor dorm is assigned on the basis of the length of the inmates' sentences, with those serving natural life sentences housed in an area called the cubicles, while those with short terms are in open dorm areas, called the easthouse. Parker Aff. P 1. The next paragraph contradicts this, stating in a conclusory fashion that the "nationality/race/creed/color" of an inmate determines the area of the dorm to which he will be assigned. Id. P 2. The affidavit does not provide any facts that would support this statement. See Mills v. First Fed. Sav. & Loan Ass'n, 83 F.3d 833, 843 (7th Cir. 1996) (conclusory allegations in an affidavit cannot defeat a summary judgment motion). The following paragraph, which is perhaps the heart of Parker's testimony, is so poorly stated that we cannot make heads nor tails of it. We quote the paragraph in full:
The races of white and black prisoners are assigned in areas were segregation is of non/disciplinary housing but were and who is housed next to each other, racewise that there were only one latino [Santana] who was in the dorm at that time. The Majority of the prisoners in the dorm are [natural lifers ], they hold the best paying assignments, and the best jobs, and have free Access to the Institution.
Id. P 3. The sole "evidence" of racial discrimination that we can discern in this paragraph (or in the affidavit as a whole) is the confirmation of De La Paz's earlier allegation that there are very few Mexican-American inmates in the honor dorm. This fact standing alone is insufficient to show that transfers to the honor dorm were biased against persons of De La Paz's race.
This Court finds that De La Paz has presented evidence that raises a jury question about the genuineness of the defendants' stated reasons for denying him access to the honor dorm. The defendants' evidence states that they denied his request for transfer because he did not meet "established criteria" in two ways: his security rating, and the distance from his release date. De La Paz has presented evidence that tends to discredit both of these justifications. Unfortunately for De La Paz, however, he still cannot prevail on his equal protection claim, because he has presented no evidence from which a jury could conclude that the real reason the defendants denied him admission to the honor dorm was racial discrimination. De La Paz presents no evidence showing that Mexican-American or Indian-American inmates meeting the established criteria were denied honor dorm placement. He demonstrates nothing more than an isolated and perhaps unfair event, or a mere inconsistency in prison management, that adversely affected him as an individual. This does not in itself establish a violation of the equal protection clause. Shango v. Jurich, 681 F.2d 1091, 1104 (7th Cir. 1982) (isolated events or mere inconsistency in prison management do not, standing alone, establish an equal protection violation) (citations omitted). The constitution does not afford inmates the right to housing in the setting of their choice. Meachum v. Fano, 427 U.S. 215, 224, 49 L. Ed. 2d 451, 96 S. Ct. 2532 (1976). De La Paz had to do more than establish a reasonable probability that he was the victim of an unfair decision; he had to demonstrate a reasonable likelihood that the defendants had purposefully and intentionally discriminated against him in denying his transfer request. Shango, 681 F.2d at 1104.
In the slightly different context of an employment discrimination claim, the Supreme Court has stated that, to win, a plaintiff must show " both that the reason [given by the employer] was false, and that discrimination was the real reason" for the employer's actions. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993). That principle is equally applicable here. It is not enough for De La Paz to suggest that the reason given by the defendants for denying his request was false; he also had to show, or at least produce evidence suggesting, that the real reason for the denial was racial discrimination. This he has failed to do.
De La Paz has not met his burden of coming forward with evidence that would allow a reasonable jury to conclude that his non-assignment to the honor dorm violated his constitutional rights. The Court grants summary judgment in favor of the defendants on De La Paz's equal protection claim.
This Court is sympathetic to Mr. De La Paz's medical problems. Nevertheless, the fact that various prison doctors have disagreed about his need for daily showers does not establish a constitutional violation. "[A] claim . . . which reflects no more than a disagreement with prison officials about what constitutes appropriate medical care does not state a cognizable claim under the Eighth Amendment." DesRosiers v. Moran, 949 F.2d 15, 20 (1st Cir. 1991). The Seventh Circuit has emphasized "if no rational jury could, on the evidence presented in the summary judgment proceeding, bring in a verdict for the party opposing summary judgment . . . then summary judgment must be granted." Visser v. Packer Engineering Assocs., 924 F.2d 655, 660 (7th Cir. 1991). This Court has concluded that the undisputed material facts show that no reasonable jury could return a verdict in favor of De La Paz.
For all of the foregoing reasons, this Court must grant summary judgment in favor of all defendants with respect to all claims presented by De La Paz. This case is hereby dismissed with prejudice. Both sides are to bear their own costs.
United States District Judge
March 27, 1997