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Irineo Barbosa v. Terry Mccann

January 5, 2011


The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer


Plaintiff Irineo Barbosa, an inmate at the Stateville Correctional Center, filed this pro se lawsuit against Stateville Warden McCann, Correctional Officers Butkiewicz, Burzinski, and Vaughn, and others, alleging that Defendants violated his Eighth Amendment rights. In an earlier order [Doc. No. 42], the court dismissed certain claims and several other Defendants. Left standing in that order were Plaintiff's claims that he was denied nutritionally adequate food; exposed to extreme cold while showering; subjected to prolonged exposure to roaches and vermin and to a lack of sanitation; and denied reasonably adequate sleeping arrangements. Defendants now seek summary judgment on those remaining claims. As explained below, the court is satisfied that Defendants have met their discovery obligations and that Plaintiff has had an ample opportunity to respond to the motion for summary judgment. He has failed to do so, however, and having reviewed the record, the court now grants the motion.


Defendants filed their motion for summary judgment on February 26, 2010. Included with that motion were a Rule 56.1 statement of material facts and the Rule 56.2 notice to Plaintiff, explaining that he is required to respond to the motion by admitting or denying each factual statement and identifying evidence that establishes a genuine dispute for trial. The court initially set a briefing schedule requiring Plaintiff to respond by April 13, 2010. [Doc. No. 68.] Later, however, after Plaintiff complained that Defendants had not provided materials requested in discovery, the court struck that motion. [Doc. No. 98.] The court has ruled on a number of discovery disputes, a process rendered more difficult by Plaintiff's refusal to participate in telephone status conferences [Doc. No. 74]. Despite the difficulties, the court is now satisfied that Defendants have met their discovery obligations. Accordingly, the court reinstated their motion for summary judgment and ordered Plaintiff to respond by December 10, 2010. [Doc. No. 108.]

Plaintiff failed to do so. Instead, on December 20, Plaintiff filed a written motion seeking sanctions for Defendants' purported failure to provide copies of Administrative Directives related to bedding and linens. [Doc. No.111.] As Defendants explained in their response to that motion [Doc. No. 112], there are no Administrative Directives on these issues. In support of his motion for sanctions, Plaintiff cited an index of Illinois Department of Corrections ("IDOC") Rules that refer to bedding and linens, but those Rules are publicly available and state only that "bedding suitable for weather and temperature shall be provided" and that "clean linen shall be provided on a scheduled weekly basis." (Defendants' Response to Motion for Sanctions [Doc. No. 112] at 5, citing 20 Ill. Admin. Code §§ 502.220, 502.230.) In any event, whether Defendants violated Plaintiff's Eighth Amendment rights does not turn on their compliance with state regulations. The court declines to award sanctions and declines to further postpone resolution of this case, which has been pending for more than two years.

On December 22, 2010, the court ordered Plaintiff to show cause in writing why the case should not be dismissed for want of prosecution. [Doc. No. 110.] As of this date, January 5, 2011, he has not responded.


Because Plaintiff has not responded to Defendant's Rule 56.1 statement, the facts set forth there are presumed true. Raymond v. Ameritech Corp.,442 F.3d 600, 608 (7th Cir. 2006). Plaintiff Irineo Barbosa was incarcerated at Stateville Correctional Center's F-House for six months between May 2, 2007 and November 2, 2007. (Def.'s 56.1 [Doc. No. 63] ¶ 5.) Plaintiff claims that he was housed in a cell with a dirty mattress that was black and lumpy and generated pain in his neck, head, and back. (Id. ¶¶ 6, 8.) His head and neck pain was exacerbated by the fact that Plaintiff was never provided with a pillow. (Id. ¶ 9.) Plaintiff complained to Defendants Butkiewicz and Vaughn about the mattress on several unspecified dates. (Id. ¶ 7.)

Plaintiff claims the toilets in his cell flushed once every fifteen minutes and, because he and his cellmate had to wait a minimum of fifteen minutes between flushes, a "nasty odor" resulted. (Id. ¶ 10.) Plaintiff says he complained to "officers, sergeant[s], lieutenant[s], all of them," but is unable to remember the names of those to whom he voiced these complaints. He recalls having complained to Defendant Vaughn, but cannot remember the dates of those complaints; admits that he did not complain to Defendants McCann or Butkiewicz; and does not remember complaining to Defendant Burzinski, and in fact does not even know who Defendant Burzinski is. (Id. ¶ 11.) Defendants have presented work orders reflecting inspections of the toilets in F-House on a monthly basis, and work orders for repair of toilets in the F-House and in Plaintiff's cell in August 2007 and October 2007. (Id. ¶ 12.)

Plaintiff was permitted just one ten-minute shower per week, and was usually cold because the water was cold and because windows in the shower room were broken. (Id. ¶¶ 13, 14.) Plaintiff complained about these conditions to Defendant Vaughn on unspecified dates. (Id. ¶ 15.) Defendants have submitted records reflecting routine inspection of windows and water temperature and work orders for repair, issued during the relevant time period. (Id. ¶ 16, citing Safety and Sanitation Inspection Reports, Exhibits D and E to Def.'s 56.1.)

Plaintiff claims he received his breakfast between 2:00 and 3:00 a.m. and suffered heart burn and irregular bowel movements as a result. (Id. ¶¶ 17, 18.) He did not see a medical professional about these conditions but did complain to a medical technician ("med tech") whenever the med tech "came up there," and was furnished with Ibuprofen when available. (Id. ¶ 19.) Plaintiff complained to Defendants Butkiewicz and Vaughn on dates he does not now recall about the time and temperature of his breakfast. (Id. ¶ 21.) On occasion, the chuckhole through which Plaintiff received his meals was closed, and Plaintiff would have to wait as long as an hour to reach the food. (Id. ¶ 20.)

Plaintiff observed "gangs" of roaches in F-House when he was housed in segregation. (Id. ¶ 22.) He complained to Defendants Butkiewicz on unspecified dates, and observed exterminators only once or twice during his six-month tenure in F-House. (Id. ¶¶ 23, 24.) Defendants presented records, however, reflecting visits from a professional pest control service provider at least eight times per month during that period. (Id. ¶ 25, citing Critter Ridder invoices, Group Exhibit C to Def.'s 56.1.)

Plaintiff claims, in addition, that he was never given cleaning supplies during his six-month tenure in segregation; that he broke out in "red bumps" due to the blankets and the roaches; that mice ate property he stored under his bed while in segregation; and that "particles" from the blanket irritated his eyes and lungs. (Id. ¶ 27-30.)

Plaintiff never advised Defendants McCann or Burzinski about the conditions alleged in his complaint. (Id. ΒΆ 31, citing Plaintiff's ...

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