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Irineo Barbosa R-45182 v. Terry Mccann

September 12, 2011


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


Pro se Plaintiff Irineo Barbosa has brought suit challenging the conditions of his confinement at the Stateville Correctional Center. On January 5, 2011, the court granted summary judgment in favor of Defendants on all but one of these claims, noting Plaintiff's apparent failure to respond to the motion for summary judgment or to an order directing him to show cause why the case should not be dismissed. Plaintiff now seeks reconsideration of that ruling. He points out that he did in fact submit a response to Defendants' motion for summary judgment, a response the court evidently overlooked because it preceded several other filings relating to a discovery dispute and because Plaintiff made no mention of his earlier response when the court directed him to show cause. The court nevertheless agrees that it should have considered Mr. Barbosa's response to the motion for summary judgment, and will do so now.

For the reasons explained here, summary judgment is entered in favor of Defendnats McCann and Burzinski. With respect to Defendants Butkiewicz and Vaughn, the motion is granted on all of the claims Plaintiff has asserted, with two exceptions: his claims regarding pest infestation and inadequate bedding survive this motion.


In his complaint, Plaintiff alleges that he lived in punitive segregation at Stateville from May 2, 2007 through November 2, 2007 and suffered a number of deprivations while in segregation.

The court dismissed several of those claims on a Rule 12(b)(6) motion: the claim of denial of access to courts, a claim that Defendants had failed to respond to grievances, and the inadequate medical care claim were dismissed in their entirety. (Dkt. No. 42, at 12.) The court dismissed certain other claims as well: the claims regarding infrequency of showers; the claim that he was denied of out-of-cell recreation; a claim that he was denied a stool, storage for his shower gear, additional hooks, and a ladder for his cell; and a claim of infrequent haircuts and access to razors were also dismissed. (Id.). The case proceeded on Plaintiff's remaining claims: that he was served food that had been sitting for an extended period of time; was required to shower in extreme cold; was exposed to pests for prolonged periods; was subjected to a lack of sanitation; and was denied reasonably adequate sleeping arrangements. (Id.).

Protracted and contentious discovery followed. Defendants moved for summary judgment, and Plaintiff responded in September 2010. He also argued, however, that he had not been provided with necessary discovery responses. (Dkt. Nos. 62, 69, 73-75, 77-79.) In response to the court's orders, Defendants ultimately complied with their discovery obligations. (Dkt. Nos. 92, 96, 104, 108.) The court then ordered discovery closed and reinstated Defendants' motion for summary judgment. (Dkt. No. 108.) On January 5, 2011, the court considered that motion and granted it. (Dkt. No. 115.)

Plaintiff correctly observes that the court's ruling made no reference to his September 2010 filing, which he made before discovery was complete. The court had overlooked that submission, perhaps because Plaintiff had insisted he was unable to respond to the motion for summary judgment without discovery responses. The court has not yet entered a final judgment in this case, however, and is free to reconsider its earlier ruling. "A district court may reconsider a prior decision . . . when the court misunderstands a party's arguments, or when the court overreaches by deciding an issue not properly before it." United States v. Ligas, 549 F.3d 497, 501-02 (7th Cir. 2008) (citing Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990)). The court failed to consider Plaintiff's submission earlier, but will do so now, considering the factual information presented in that submission in the light most favorable to Plaintiff, the non-moving party, and drawing all reasonable inferences in his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); E.E.O.C. v. AutoZone, Inc., 630 F.3d 635, 639 (7th Cir. 2010).


Plaintiff Irineo Barbosa was incarcerated, housed in a segregation unit, at Stateville Correctional Center's F-House for six months between May 2, 2007 and November 2, 2007. (Plaintiff's 56.1 Response ("Pl.'s 56 Response") [Dkt. No. 99] ¶ 5.) Plaintiff claims that he was housed in a cell with a dirty mattress that was black and lumpy; as a result of these conditions and of being denied a pillow, Plaintiff suffered pain in his neck, head, and back. (Id. ¶¶ 6, 8, 9.) Plaintiff complained to Defendants Butkiewicz and Vaughn about the mattress on several unspecified dates. (Id. ¶ 7.)

The toilets in Plaintiff's cell were, he claims, set on a timer to flush only once every 15 minutes. As a result of the fact that he and his cellmate were required to wait 15 minutes between flushes, there was a "nasty odor" in the cell that generated headaches and nausea. (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. (Id. ¶ 11.) He does recall 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.) In his response to Defendant's summary judgment motion, Plaintiff asserts that he did inform Butkiewicz and suggests that he did complain to Burzinski but "could not remember Burzinski by name." (Id..) The testimony he cites, however, confirms Defendants' version; when asked, "Do you remember complaining to Butkiewicz about the toilet?," Plaintiff responded, "No." (Barbosa Deposition [Dkt. No. 65-2], at 17.) Asked whether he had complained to Burzinski, Plaintiff responded, "Again, I don't know him." (Id. at 28.)

Defendants have presented work orders reflecting inspections of the toilets in F-House on a monthly basis, and work orders for the repair of toilets in the F-House and in Plaintiff's cell in August 2007 and October 2007. (Defendants' 56.1 ("Defs' 56.1") ¶ 12.) Plaintiff disputes this evidence, but only to the extent that it is offered "to deceive the court into believing the timers were removed from Plaintiff's toilet and all F-house toilets." (Pl.'s 56.1 Response ¶ 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 during the time he was confined to segregation. (Id. ¶ 15.)

Defendants have submitted records reflecting monthly inspection of safety and sanitation issues, including such issues as broken windows and inadequate hot water. (Defs' 56.1 ¶ 16, citing Safety and Sanitation Inspection Reports, Exhibits D and E to Defs' 56.1.) Plaintiff acknowledges that broken windows and water temperature issues were "documented"; he contends there is no evidence that repairs were actually made (Pl.'s 56.1 Response ¶ 16), but the monthly reports submitted by Defendants include status notations confirming that work orders were submitted for repair of broken windows. (Memoranda, Dkt. No. 65-2, at 55, 57, 59, 61, 63, 65, 67.)

Plaintiff claims he received his breakfast between 2:00 and 3:00 a.m. and suffered heartburn, indigestion, pain, and irregular bowel movements as a result. (Pl.'s 56.1 Response ¶¶ 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.) In response to the motion for summary judgment, Plaintiff expands this claim, asserting that "there were times that he had to wait more than two hours to receive ...

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