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Chad Alan Hicks v. Silas M. Irvin

September 17, 2012

CHAD ALAN HICKS, PLAINTIFF,
v.
SILAS M. IRVIN, TIMOTHY WRIGHT, DENNIS ROLKE, CAPTAIN R. SAVICH, LIEUTENANT DIAMOND, AND ADMINISTRATIVE WARDEN HENRY, DEFENDANTS.



The opinion of the court was delivered by: Robert M. Dow, Jr. United States District Judge

MEMORANDUM OPINION AND ORDER

This matter is before the Court on cross motions for summary judgment filed by Plaintiff Chad Alan Hicks [169] and Defendants Silas M. Irvin ("Irvin"), Dennis Rolke ("Rolke"), Lazo Savich ("Savich"), James Diamond ("Diamond"), and James Henry ("Henry") [172]. For the reasons set forth below, the Court denies Plaintiff's partial motion for summary judgment [169] and grants in part and denies in part Defendants' motion for summary judgment [172]. With respect to Count I, the Court grants Defendants' motion for summary judgment as it pertains to Defendant Rolke, but denies Defendants' motion as it pertains to Defendants Irvin, Savich, Diamond, and Henry and also denies Plaintiffs' motion. With respect to Count II, the Court denies Defendants' motion for summary judgment.

I. Background

A. Procedural Background

Plaintiff Chad Alan Hicks ("Hicks") filed this prison civil rights lawsuit without the assistance of counsel in 2006. The complaint names as Defendants several officials at the Metropolitan Correctional Center in Chicago ("MCC"). Hicks maintains that he was falsely accused of assaulting a correctional facility officer; that he was placed for six days in a segregated, bug-infested "dry cell" that was inundated with feces; and that he was retaliated against for filing suit in response to these conditions. After weathering a motion to dismiss, Hicks filed his third amended complaint in October 2009, specifically alleging in Count I (against all Defendants) that his cell conditions violated the Fifth Amendment's prohibition on cruel and unusual punishment against pre-trial detainees and in Count II (brought only against Defendant Rolke) that Plaintiff was deprived of his First Amendment rights by being placed in administration detention in retaliation for the filing of this lawsuit.

Defendants previously moved for summary judgment under the Prison Litigation Reform Act ("PLRA" or the "Act"), arguing that Plaintiff had not exhausted his administrative remedies before filing suit in federal court. The Court denied the motion, concluding that the evidence in the record indicated that Hicks had used all of the regulatory hooks that were available to him. Each side now moves for summary judgment on the substantive claims. Plaintiff moves for partial summary judgment on Count I, and Defendants move for summary judgment on both counts.

B. Factual Background

Hicks arrived at the MCC in August 2005, where he awaited trial on bank robbery charges. On October 8, 2005, Hicks was accused of assaulting Defendant Rolke, a correctional officer at the MCC. Hicks admits that he had an incident with correctional officers Rolke and Wright after he walked out of his cell and that he was ordered to the ground and handcuffed, but denies that he assaulted Rolke. Thereafter, Hicks was placed in Cell 1104 in the MCC's Special Housing Unit-segregated housing-where he would stay until October 14, 2005. The Special Housing Unit is a separate floor of the MCC to which inmates can be sent to be segregated from the general population for disciplinary segregation resulting from an infraction of MCC rules. Inmates also can be placed in segregated housing for administrative detention pending resolution of a disciplinary investigation, where there is a need to separate them from other inmates or staff members. Inmates in the Special Housing Unit are confined to their cell for 23 hours a day and allowed out of the cell for one hour a day for showering (typically three times per week), recreation, or use of the law library.

Hicks maintains that the faucet in his cell-an inmate's only source of water in the cell- did not work. He claims that the only water he received each day he was in segregated housing was a four to six ounce glass of water that was served three times a day (with each meal). According to the testimony of Defendants, the lack of water in a cell is a "major problem" and a defective sink should be repaired immediately. Hicks also maintains that when inmates in the cells adjacent to Hicks' cell flushed their toilets, Hicks' toilet would back up. Hicks testified that the toilet was never fixed while he was in Cell 1104 and that he did not have a bucket to use for going to the bathroom. According to Hicks, because he could not flush the toilet properly, feces accumulated in the toilet over the six days that he was in Cell 1104. Defendants admitted that no inmate should be in a cell with a broken toilet and that if broken, a toilet should be repaired immediately. Hicks also maintains that each day he was in segregated housing, he noticed bugs in the sink drain and on the floor. He did not suffer any bug bites. As with broken toilets and faucets, the parties agree that the presence of bugs is a serious problem that should be immediately addressed.

The officers assigned to segregated housing kept a log book. Defendants would sign the log book when they made rounds through segregated housing. On October 13, 2005, Defendant Irvin, the MCC's Warden, made rounds through segregated housing. One of Irvin's job responsibilities as Warden was to do rounds through segregated housing to make sure everything was running smoothly and to talk to inmates about any problems. On October 12 and 14, 2005, Defendant Savich, a captain at the MCC, signed into the log book. When he was making the rounds, Savich would stop by each cell and, if the inmate requested, he would talk to the inmate. Savich testified that he did not sign into the log book every time that he went on rounds, but because the unit fell directly under his responsibilities, he typically visited the Special Housing Unit "at least two, three, four times a week." Defendant Diamond, a lieutenant at the MCC, made rounds through the unit on at least October 11, 12, 13, and 14, 2005. Diamond regularly walked through segregated housing on average between "five and ten" times every day that he was working. Similarly, Defendant Henry, an associate warden, made rounds on at least October 13 and 14, 2005, and would "go cell to cell to cell to cell, acknowledge the inmates * * * try to talk to the inmates when * * * making rounds." Defendant Rolke never passed through the Special Housing Unit while Hicks was there.

Hicks maintains that he verbally complained to Irvin, Henry, Savich, and Diamond about the bugs, clogged toilet, and lack of water in Cell 1104 while they made rounds through segregated housing. Irvin testified that he does not recall whether Hicks complained to him about the lack of water, bugs, and broken toilet in the cell, but that if he did, corrective action would have been taken; Diamond stated that he had no "knowledge or recollection" about Hicks's defective toilet or lack of water while he was in segregated housing and that he was "100 percent certain" that Hicks did not talk to him about bugs in his cell; Henry testified that if Hicks had mentioned the toilet, a lack of water, or bugs to him, he would have instructed the appropriate staff to correct the problem; and Savich testified that Hicks never spoke to him about bugs in his cell nor does he recall Hicks telling him about a broken toilet or lack of water. On October 14, 2005 at 2:29 p.m., Mr. Rafael Martinez from the facilities department of the MCC signed into the Special Housing Unit log book "to check on plumbing" for SHU cell 1104, although Mr. Martinez does not specifically recall this occasion. Hicks had been moved out of the cell earlier that day.*fn1

On May 2, 2006, Hicks filed an amended complaint regarding his October 2005 cell conditions. The amended complaint and summons were served on Rolke on May 4, 2006. On or about May 18, 2006, Rolke claims that he heard from an inmate that Hicks was back in the MCC and discussing the lawsuit he had filed against Rolke. Hicks disputes that he ever discussed Rolke or his complaint with any other inmates at the MCC. Rolke informed his supervisor, Lieutenant Calvin Friar, that Hicks was discussing his lawsuit against Rolke with other inmates. Rolke testified that when he spoke to Lieutenant Friar, Rolke did not suggest or ask that Hicks be placed in segregated housing. The parties agree that correctional officers do not have the authority to write up transfer orders, but dispute whether correctional officers can authorize an inmate to go to the Special Housing Unit, for instance, by complaining about an inmate. According to Defendants, the discretion to place an inmate in segregated housing for administrative detention rests with the lieutenant supervising the shift.

On May 18, 2006, Hicks was placed in the Special Housing Unit, and after his placement, Lieutenant Friar generated an administrative detention order. The order states that Hicks was "being placed in administrative detention for security concerns." Although Friar does not have an independent recollection of issuing the May 18, 2006 administrative detention order, based on his reading of the administrative detention order, he believes that he issued the order placing Hicks in the Special Housing Unit because of security concerns. Friar testified that he believed that an inmate talking about a lawsuit that he filed against a correctional officer could undermine that officer's authority and raise a security concern justifying placing the inmate in administrative detention. Lieutenant Friar specifically stated that this was "a gray area" and"[i]t depends on how [the inmate's] talking about it, ...


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