United States District Court, N.D. Illinois
MEMORANDUM OPINION AND ORDER
FEINERMAN, UNITED STATES DISTRICT JUDGE
Oluwole Akindele, a pretrial detainee at the Cook County
Jail, alleges in this pro se 42 U.S.C. § 1983
suit against Superintendent Arce and Commander Hickey that he
was housed for nine days in a cell with a non-flushing
toilet. Defendants have moved for summary judgment. Doc. 61.
Plaintiff has not responded to the motion, despite having
been given two opportunities to do so and having been warned
that the court would rule on the motion without the benefit
of a response if he failed to file one. Docs. 66, 71. The
motion is granted.
with the local rules, Defendants filed a Local Rule
56.1(a)(3) statement of undisputed facts along with their
summary judgment motion. Doc. 63. The relevant factual
assertions in the Local Rule 56.1(a)(3) statement cite
evidentiary material in the record and are supported by the
cited material. See N.D. Ill. L.R. 56.1(a)
(“The statement referred to in (3) shall consist of
short numbered paragraphs, including within each paragraph
specific references to the affidavits, parts of the record,
and other supporting materials relied upon to support the
facts set forth in that paragraph.”). Also consistent
with the local rules, Defendants filed and served on Akindele
a Local Rule 56.2 Notice, which explains what Local Rule 56.1
requires of a litigant opposing summary judgment. Doc. 64.
Akindele did not file a response brief, a Local Rule
56.1(b)(3)(B) response to the Local Rule 56.1(a)(3)
statement, or a Local Rule 56.1(b)(3)(C) statement of
district court is entitled to decide [a summary judgment]
motion based on the factual record outlined in the [Local
Rule 56.1] statements.” Koszola v. Bd. of Educ. of
Chi., 385 F.3d 1104, 1109 (7th Cir. 2004) (third
alteration in original) (internal quotation marks omitted);
see also Olivet Baptist Church v. Church Mut. Ins.
Co., ___ F. App'x ___, 2017 WL 129943 (7th Cir. Jan.
13, 2017) (“The district court treated most of the
[defendant's] factual submissions as unopposed, because
the [plaintiff] failed to contest them in the form required
by Local Rule 56.1(b). We have held that the district court
is entitled to enforce that rule in precisely the way it
enforced the rule in this litigation.”); Stevo v.
Frasor, 662 F.3d 880, 886-87 (7th Cir. 2011)
(“Because of the high volume of summary judgment
motions and the benefits of clear presentation of relevant
evidence and law, we have repeatedly held that district
judges are entitled to insist on strict compliance with local
rules designed to promote the clarity of summary judgment
filings.”); Patterson v. Ind. Newspapers,
Inc., 589 F.3d 357, 360 (7th Cir. 2009) (“We have
repeatedly held that the district court is within its
discretion to strictly enforce compliance with its local
rules regarding summary-judgment motions.”); Ammons
v. Aramark Uniform Servs., Inc., 368 F.3d 809, 817 (7th
Cir. 2004) (“We have … repeatedly held that a
district court is entitled to expect strict compliance with
Rule 56.1.”). Akindele's status as a pro
se litigant does not excuse him from complying with
Local Rule 56.1. See McNeil v. United States, 508
U.S. 106, 113 (1993) (“[W]e have never suggested that
procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed
without counsel.”); Coleman v. Goodwill Indus. of
Se. Wis., Inc., 423 F. App'x 642, 643 (7th Cir.
2011) (“Though courts are solicitous of pro se
litigants, they may nonetheless require strict compliance
with local rules.”); Wilson v. Kautex, Inc.,
371 F. App'x 663, 664 (7th Cir. 2010) (“[S]trictly
enforcing Local Rule 56.1 was well within the district
court's discretion, even though Wilson is a pro se
litigant.”) (citation omitted); Cady v.
Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006)
(“[E]ven pro se litigants must follow rules of
the court will accept as true the facts set forth in
Defendants' Local Rule 56.1(a)(3) statement, viewing
those facts and the inferences therefrom in the light most
favorable to Akindele. See N.D. Ill. L.R.
56.1(b)(3)(C) (“All material facts set forth in the
statement required of the moving party will be deemed to be
admitted unless controverted by the statement of the opposing
party.”); Parra v. Neal, 614 F.3d 635, 636
(7th Cir. 2010); Rao v. BP Prods. N. Am., Inc., 589
F.3d 389, 393 (7th Cir. 2009) (“In accordance with
[Local Rule 56.1(b)(3)(C)], the district court justifiably
deemed the factual assertions in BP's Rule 56.1(a)
Statement in support of its motion for summary judgment
admitted because Rao did not respond to the
statement.”); Cady, 467 F.3d at 1061;
Raymond v. Ameritech Corp., 442 F.3d 600, 608 (7th
Cir. 2006); Schrott v. Bristol-Myers Squibb Co., 403
F.3d 940, 943 (7th Cir. 2005); Smith v. Lamz, 321
F.3d 680, 682-83 (7th Cir. 2003). That said, the court is
mindful that “a nonmovant's … failure to
comply with Local Rule 56.1 … does not …
automatically result in judgment for the movant. The ultimate
burden of persuasion remains with [the movant] to show that
[the movant] is entitled to judgment as a matter of
law.” Raymond, 442 F.3d at 608 (citations
omitted). The court therefore will recite the facts in
Defendants' Local Rule 56.1(a)(3) statement and then
determine whether, on those facts, they are entitled to
challenges the conditions of his confinement while he was
housed in Cell 3263 in Division 9 at Cook County Jail in May
2015. Doc. 63 at ¶ 2. At that time, both Arce and Hickey
were staffed in Division 9. Id. at ¶¶
3 at 7:30 a.m., the toilet in Akindele's cell overflowed
after he flushed it, spilling urine, feces, and bread onto
the floor. Doc. 63 at ¶¶ 3-4. Akindele testified
that “not that much” feces spilled onto the floor
and that he never came in contact with human waste.
Id. at ¶¶ 5-6. An officer promptly
responded to his calls for help, gave Akindele a mop, bag,
dustpan, and gloves, and told Akindele that he would put in a
work order and call a plumber. Id. at ¶¶
7-8. After cleaning his cell, Akindele placed a towel over
the toilet. Id. at ¶ 9. This was the only time
the toilet overflowed. Id. at ¶ 15.
11, a plumber fixed the toilet, so Akindele's waste
remained in the toilet from May 3 to May 11. Id. at
¶¶ 11-12. During that nine-day period, Akindele was
able to use the dayroom restroom during dayroom time, which
was 90 minutes each morning and evening. Id. at
¶ 13. A guard told Akindele that if he needed to use the
restroom at other times, he could ask for permission. Doc.
63-1 at 186. Akindele estimated that, apart from dayroom
time, he used toilets outside of his cell approximately three
times during those nine days. Doc 63 at ¶ 14.
testified that he continued to use his toilet when he could
not use alternative facilities, meaning that his waste
accumulated unflushed between May 3 and May 11. Id.
at ¶ 10. His inability to readily access a flushing
toilet caused him to experience cramping and pain.
Id. at ¶ 22. He has not been diagnosed with any
disorder that causes him to defecate more than an average
person or any with medical condition as result of his toilet
not flushing, id. ¶¶ 21, 24, and the
record does not indicate that he ever soiled himself. After
the toilet was fixed on May 11, Akindele's cramps
stopped. Id. at ¶ 23. Akindele testified that
after the repair, it took him approximately a week and half
to adjust to using a toilet regularly again. Id. at
Defendants' involvement, on May 6 or 7, Akindele told
Arce that his toilet was broken. Id. at ¶ 16.
Arce advised Akindele that a work order had been submitted,
that a plumber should be coming to repair the toilet, and
that, in the meantime, he could use the toilet in the
dayroom. Id. at ¶ 17. After Akindele told Arce
that some officers were not allowing him to use the dayroom
bathrooms, Arce stated, “we'll see what we can
do.” Id. at ¶ 18.
8, Akindele told Hickey that his toilet was broken. Doc. 63
at ¶ 19. In response, Hickey stated, “[W]e will
fix it.” Ibid. A work order was submitted to
fix the toilet, which-as noted-was repaired on May 11.
Id. at ¶¶ 20, 23.
argue that the lack of a flushing toilet in Akindele's
cell for nine days does not rise to the level of a
constitutional deprivation and that, in any event, no
evidence indicates that they acted with the state ...