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January 14, 2005.

LEVI NASH; IRENE R. SMITH, Special Administrator of the Estate of Levi Nash, Deceased, Plaintiff,
ODIE WASHINGTON, Director, (IDOC); GEORGE DETELLA, Warden; JEROME SPRINGBORN, Assistant Warden; VERNETTE COVIN RUSSELL, Superintendent; BOB OLIVER, Casework Supervisor, Defendants.

The opinion of the court was delivered by: JAMES ZAGEL, District Judge


The Defendants seek summary judgment in this suit filed by Plaintiff Levi Nash, a prisoner incarcerated at Stateville Correctional Center at the time of the incidents about which he complains. In his Complaint, Plaintiff alleges that he was denied the right to attend communal religious services and that his cell was very cold in the winter and was infested with pests. Defendants contend that the Plaintiff was unable to attend communal religious services because of a need to separate the Plaintiff from other prisoners given his past behavior, and deny that the conditions of the Plaintiff's cell(s) rose to the level of a constitutional violation.

Summary judgment is required when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). O'Connor v. DePaul Univ., 123 F.3d 665, 669 (7th Cir. 1997). In weighing a motion for summary judgment, the court must consider the facts in the light most favorable to the party opposing the motion and draw all reasonable inferences in that party's favor. Bahl v. Royal Indem. Co., 115 F.3d 1283, 1289 (7th Cir. 1997); Condo v. Sysco Corp., 1 F.3d 599, 601 (7th Cir. 1993). The party opposing the motion must present evidence of a triable issue of material fact. See Vance v. Peters, 97 F.3d 987, 990 (7th Cir. 1996). The nonmoving party is required to go beyond the pleadings and designate specific facts showing a genuine issue for trial. Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991). A fact is material when it would determine the outcome under the governing law. Whetstine v. Gates Rubber Co., 895 F.2d 388, 392 (7th Cir. 1990). A material fact is genuinely in dispute when "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When a responding party's statement fails to controvert the facts as set forth in the moving party's statement in the manner dictated by the Rule 56.1, those facts shall be deemed admitted for purposes of the motion. . . . A district court is not required to "wade through improper denials and legal argument in search of a genuinely disputed fact." Bordelon v. Chicago Sch. Reform Bd. of Trustees, 233 F.3d 524, 529 (7th Cir. 2000). A mere disagreement with the movant's asserted facts is inadequate if made without reference to specific supporting material. Edward E. Gillen Co. v. City of Lake Forest, 3 F.3d 192, 196 (7th Cir. 1993).

  The parties do not dispute that Plaintiff was denied access to communal religious services. At this time, Plaintiff was living in the protective custody unit; however, his status was that of "un-approved" for protective status. The prison's undisputed policy is to keep inmates like the Plaintiff, who are not approved for protective custody, out of communal religious services in the protective unit until their placement in protective custody is approved. By definition, inmates approved for these units are in need of protection; prison officials must determine what other inmates may be allowed contact with them. Inmates who cannot attend services are provided with Chaplains, who make regular rounds in the units and who are also available upon specific request. According to Defendants, the Plaintiff was not permitted to attend communal religious services because he "has a history of aggressive behavior, staff assaults and he was involved with a hostage crisis at a corrections facility." The Plaintiff simply denies that he has the bad history the defendants say he does. He gives no details to refute the claim. In the context of this case, it is an ineffective denial as it does not create an issue of material fact.

  However, even if the Plaintiff had raised factual issues challenging his alleged history, I would still grant summary judgment on this count. The only material issue is whether Defendants reasonably believed the Plaintiff had such a history, which they duly assert. The Plaintiff does not challenge that the Defendants held this belief, nor the reasonableness of it. That belief renders the Defendants' conduct appropriate. O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987) (prison regulations that infringe upon an inmate's exercise of religion do not violate the constitution if the regulations are reasonably related to legitimate penological objectives).*fn1 A policy that denies inmates who are not approved for protective custody the opportunity to mingle with those who are approved for such custody may be over-inclusive, but on its face, the reasonableness of that policy is not subject to challenge. Judges Pallmeyer and Gettleman have taken the same position in cases cited to me. See Grant v. DeTella, 1999 U.S. Dist. LEXIS 16208 (N.D. Ill. Oct. 5, 1999); and Burton v. Nelson, 1998 U.S. Dist. LEXIS 1050 (N.D. Ill. Feb. 2, 1998). Summary judgment is therefore granted for Defendants on Plaintiff's claim of denial of religious freedom.*fn2

  The Plaintiff's claim of injury from a cold, infested cell cannot be disposed of by summary judgment. In support of their motion for summary judgment, Defendants offer evidence that the prison hired an exterminator and evidence documenting the actions of the exterminators and the spraying of the cells. The Defendants also present evidence that the prison requires inmates to keep their cells clean and provides inmates the means to clean them. Finally, Defendants offered evidence that blankets and clothing are available to inmates to ward off cold, that inmates have access to plastic to seal windows, that there is a working heating system for the cell house, and that according to business records, the temperature never fell below an acceptable level.

  The Plaintiff faces a high hurdle in order to overcome this evidence and demonstrate a genuine issue of material fact regarding the conditions of his cell. In response, the Plaintiff offers his eyewitness account in which he alleges that he had seen the cells sprayed only once or twice, not routinely; that he could not clean his cell because he did not have a mop; that plastic sheeting was not available to him; and that his cell was quite cold with frost on the walls on a regular basis. It is possible that this testimony is perjury; but it is also possible it is not. That precludes summary judgment on the cell condition claim if, and only if, the Plaintiff can demonstrate that the cell conditions were unconstitutionally harsh. Wilson v. Seiter, 501 U.S. 294, 298 (1991); Dixon v. Godinez, 114 F.3d 640 (7th Cir 1997).

  In order to prevail on this claim, the Plaintiff must show that the named defendants were deliberately indifferent to his plight. James v. Milwaukee County, 956 F.2d 696, 699 (7th Cir. 1992). In general, a plaintiff does not necessarily have to complain about a cold cell in order for a defendant to be found indifferent to the plaintiff's plight. For example, the failure of a heating system in a cell house would put an entire chain of command on notice of potentially harsh condition — at least as far as the head of the institution in question. But there is no evidence in this case of a system-wide failure that could be found to have provided institutional notice.

  Rather, it is uncontested that Stateville records show that the monitoring systems as well as random temperature readings in various cells did not show a heating system failure. At best, the Plaintiff's complaint can only be sustained with respect to those individuals to whom he complained. This reduces the case to a question of whether the Defendants to whom the Plaintiff complained were deliberately indifferent to the cold condition of the 6 or 7 individual cells in which the Plaintiff was housed.*fn3 The particular difficulty faced by the Plaintiff is that, with one exception, the people he complained to about the cell are not defendants here. They were various correctional officers whose names he does not remember and those who dealt with his grievances.

  The one individual to whom Plaintiff complained was George DeTella, then Warden of Stateville Penitentiary. According to the Plaintiff, he complained to Warden DeTella one day when the Warden was making rounds of the gallery. It is a custom in many penal institutions for a Warden to make rounds and to hear out any inmate who catches his or her attention. Plaintiff asked about his exclusion from religious services and Warden DeTella said he would consult with his staff. Plaintiff testified in a deposition that "I spoke to him about [the dirty condition in my cell and] he told me he would consult with the staff . . . I spoke to him about [it being cold in my cell]." Plaintiff said the conversation occurred in 1996.*fn4

  This was the sole complaint the Plaintiff made to the Warden.*fn5 The uncontested evidence shows that problems of heating and cleanliness were managed by the Unit Superintendents of the cell houses, who did not report directly to Warden DeTella, but reported to the Assistant Warden of Operations. It is uncontradicted in this case (and in many others) that the Warden, who heard inmate complaints, delegated these issues to his staff or advised inmates to take their complaints to the grievance system, as the Warden himself was too burdened with duties to review grievance responses. In this case, the Warden does not recall the one occasion on which the Plaintiff spoke to him, although he does not deny that it may have occurred. On these uncontested facts, the Plaintiff cannot establish that Warden DeTella was deliberately indifferent to his situation. Plaintiff cannot establish deliberate indifference on the basis of a single, undetailed complaint to the Warden, which may have occurred near the end of his time in the Unit. Nor would a response that referred Plaintiff's complaint to staff or to a grievance process entitle a trier of fact to find that the Warden was deliberately indifferent.*fn6 See, e.g., Steidl v. Gramley, 151 F. 3d 739 (7th Cir. 1998) (supervisory responsibility of warden is generally insufficient to establish personal liability); and Goodman v. Carter, 2001 U.S. Dist. LEXIS 9213 at *14 (official who believes grievance was being properly handled by subordinate cannot be found deliberately indifferent). Therefore, summary judgment is granted in favor of Defendant DeTella (and Defendant Springborn, to whom no complaint was made), as a reasonable trier of fact could not find that DeTella or Springborn were deliberately indifferent to the conditions of plaintiff's cell.

  This leaves only two Defendants in the case. The first, Robert Oliver, was a casework supervisor in the Plaintiff's unit, to whom Plaintiff orally complained, "not too often because you barely get to see him," but to whom he never wrote. The other remaining Defendant is the Unit Manager, Vernette Covin-Russel, whose responsibility was to oversee the provision of care for the inmates in the unit where plaintiff was housed. She cannot remember the Plaintiff ever making a complaint to her. In his deposition, the Plaintiff does not testify that he complained to her.

  However, I decline to grant summary judgement with respect to Robert Oliver or Vernette Covin-Russell.*fn7 Both spent significant time in the Plaintiff's Unit. The condition of the Unit was, in part, Russell's primary responsibility. A trier of fact could find that even without Plaintiff's complaint, these individuals might have been aware of the conditions in the Unit given the fact that the Plaintiff occupied several cells in the Unit. A trier of fact, if it found the conditions were as bad as the Plaintiff claims, could find these persons were deliberately indifferent to these conditions.*fn8 I therefore grant summary judgment on the claim concerning Plaintiff's cell conditions with respect to Defendants DeTella and Springborn, and deny summary judgment for Defendants Oliver and Covin-Russell.

  For these reasons, summary judgment is GRANTED on the claim of denial of religious freedom, and GRANTED IN PART and DENIED IN PART on the ...

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