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Bentzz v. Butler

United States District Court, S.D. Illinois

May 15, 2017

DAVID ROBERT BENTZ, Plaintiff,
v.
KIMBERLY BUTLER, AIMEE LANG, BILL WESTFALL, JAMES BEST, FRANK EOVALDI, MICHAEL SAMUELS, NICHOLAS BEBOUT, CLINT MAYER, JOSHUA BERNER, SHANE QUANDT, DONALD LINDENBERG, JARED PHILLIPS, JAY MCMILLAN, and WESTLEY SPILLER, Defendants.

          MEMORANDUM AND ORDER

          NANCY J. ROSENSTENGEL United States District Judge.

         Currently pending before the Court is the Motion for Summary Judgment filed by all Defendants, except Westley Spiller, on January 11, 2017 (Doc. 113).[1] For the reasons set forth below, the Motion is granted in part and denied as moot in part.

         Introduction

         On September 12, 2014, David Robert Bentz, along with five other inmates, filed a purported class action complaint on behalf of themselves and other inmates incarcerated at the Menard Correctional Center alleging they were subjected to unconstitutional conditions of confinement because of excessive heat in the North-2 cellhouse (“N-2”) during the summers (Doc. 1). That complaint was dismissed without prejudice on October 16, 2014, for failure to state a claim (Doc. 15). After Plaintiffs filed an amended complaint on November 6, 2014 (Doc. 18), they were issued a warning about the perils of proceeding jointly and directed to notify the Court if they still wished to proceed with the suit (Doc. 22). Only two Plaintiffs, Bentz and Jesse Perez, adopted the amended complaint (Docs. 31, 35). Perez, however, later sought and was granted leave to dismiss his claims (Docs. 61, 67). As such, Bentz is the only remaining Plaintiff.

         In a nutshell, the amended complaint alleges that prison officials at Menard, individually and in conspiracy with one another, do not take adequate measures to ensure the health and safety of Bentz and the members of the proposed class when temperatures in N-2 rise above a heat index of 90 degrees (Docs. 18, 36). According to the amended complaint, there are few or no fans circulating air through the unit as a whole (Id.). Ice and water are not regularly available in sufficient quantities and intervals (Id.). Routine wellness checks are not made during these periods (Id.). Bentz alleges the high heat and humidity is not merely uncomfortable, it poses a scientifically recognized health risk, and an even greater danger to those with certain preexisting health conditions (Id.).

         The amended complaint was screened pursuant to 28 U.S.C. § 1915A, and Bentz was permitted to proceed on three counts:

Count 1: Since the summer of 2014 (in an ongoing violation), Defendants, individually and/or in conspiracy, by their acts and their failure to cure the conditions of confinement, endangered inmates' health and safety whenever the heat index exceeded 90 degrees, in violation of the Eighth Amendment;
Count 2: Since the summer of 2014 (in an ongoing violation), Defendants, individually and/or in conspiracy, by their acts and their failure to cure the conditions of confinement, negligently endangered inmates' health and safety whenever the heat index exceeded 90 degrees, in violation of Illinois common law; and
Count 3: Since the summer of 2014 (in an ongoing violation), Defendants, individually and/or in conspiracy, have by their acts and their failure to cure the conditions of confinement, retaliated against Bentz in violation of the First Amendment.

(Doc. 36).

         To the extent that Counts 1 and 2 are pursuing claims on behalf of a class, those claims are dismissed because, to date, no motion for class certification under Federal Rule of Civil Procedure 23 has been filed. Consequently, the Court construes Counts 1, 2, and of course 3, as pertaining to Bentz only.

         The fourteen current Defendants were all employed at Menard during the relevant time period as either correctional officers or medical staff, except for Kimberly Butler, who is the former Warden of Menard. Each of the Defendants, except for Butler, worked in or around N-2, which houses both general population inmates and those subject to segregation.

         In their motion for summary judgment, Defendants argue that they are entitled to judgment as a matter of law because they did not subject Bentz to unconstitutional conditions of confinement, they did not violate his Eighth Amendment rights, they did not retaliate against him, and they are otherwise entitled to qualified immunity (Doc. 114). Bentz filed a response in opposition to the motion for summary judgment on March 31, 2017 (Doc. 128). One week later, he filed an amended response, to which he attached an affidavit that purports to verify that both the amended complaint and the response itself are “true and correct” (Doc. 131, p. 13). Defendants filed a reply to Bentz's response on April 24, 2017 (Doc. 138).

         Legal Standard

         “Summary judgment is appropriate where the admissible evidence shows that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law.” Bunn v. Khoury Enterprises, Inc., 753 F.3d 676, 681 (7th Cir. 2014) (citing Fed.R.Civ.P. 56(a)). In determining whether a genuine issue of material fact exists, the Court views the record in the light most favorable to the nonmoving party, and construes all facts and draws all reasonable inferences in favor of that party. Bunn, 753 F.3d at 681.

         On a motion for summary judgment where the nonmovant bears the ultimate burden of proof on a claim, the moving party still has the “initial burden of production . . . to inform the district court why a trial is not necessary.” Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013). The movant can satisfy their burden by either “presenting affirmative evidence that negates an essential element of the nonmoving party's claim” or by simply “showing that there is an absence of evidence to support the nonmoving party's case.” Hummel v. St. Joseph Cty. Bd. of Comm'rs, 817 F.3d 1010, 1016 (7th Cir. 2016); Modrowski, 712 F.3d at 1169.

         If the movant takes the latter approach, the non-moving party “must respond by offering evidence that would allow a reasonable trier of fact to find in that party's favor on the issue.” Hummel, 817 F.3d at 1016 (citation omitted). “The non-moving party ‘need not depose her own witnesses or produce evidence in a form that would be admissible at trial, but she must go beyond the pleadings (e.g., produce affidavits, depositions, answers to interrogatories, or admissions on file).” Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).

         Here, Bentz states in his response and affidavit that he “will produce evidence of retaliation [and other things] with testimony of witnesses and/or previous Plaintiffs in this action and other” (Doc. 131, p. 13). Such a response to a Rule 56 motion is insufficient. Summary judgment is “not a dress rehearsal or practice run; it is the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events.” Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)). Bentz cannot merely inform the Court that certain individuals will provide testimony at trial to support his case. He is “required to marshal and present the court with the evidence [he] contends will prove his case” right now, as part of his response to summary judgment. Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010); See also Parker v. Trustees of Indiana University School of Medicine, 800 F.3d 843, 848 (7th Cir. 2015) (“Federal Rule of Civil Procedure 56 demands that the non-movant ‘cite to particular parts of materials in the record' in order to show that there is a genuine dispute of fact between the parties . . . .” (quoting Fed.R.Civ.P. 56(c)(1)(A)). To the extent that Bentz has not presented any evidence to dispute Defendants' statement of undisputed material facts, those material facts, as long as they are supported by evidence, shall be accepted as true.

         Bentz's affidavit also leaves a lot to be desired. In this brief affidavit, Bentz essentially states that every fact contained in the amended complaint (Doc. 18), and his response (Doc. 131), are true and accurate. This assertion presents a problem with respect to the amended complaint because that document was signed by six Plaintiffs, including Bentz. Bentz does not parse out which statements of fact, vague as they may be, are the result of his own personal knowledge as opposed to the personal knowledge of the other individuals. Furthermore, the amended complaint itself is not verified such that the Court could consider factual statements made in it by the other individuals who are no longer Plaintiffs in this suit. In any event, given the limited length of both the amended complaint and the response, the Court will consider facts contained therein that can be reasonably based on Bentz's own personal knowledge.

         Factual Background

         On May 12, 2014, Kimberly Butler, the Warden of Menard, issued a “Procedural Bulletin” setting forth how to combat excessive summer temperatures and how to recognize and report heat related health conditions (Doc. 114-3, pp. 1-2). The Bulletin was issued to all staff and offenders and provided, in particular, that: (1) on “extremely hot days, ” fans should be provided and placed around the cells and galleries to achieve a gentle breeze; (2) when temperatures reach 95°F, inmates should be permitted to shower frequently to reduce body temperature, ice water should be made available “at all times during the working hours, ” temperatures in the cells should be monitored, and hard labor activities limited; and (3) frequent medical rounds should be made and signs of heat exhaustion or heat stroke should be reported immediately to health personnel (Id.) (emphasis in original). The Bulletin also indicated that all inmates would be permitted to purchase fans (even if restricted in their commissary purchases) during the summer months and that ice would be handed out beginning on June 1, 2014 (Id.). This Bulletin was reissued in 2015 and 2016 (Doc. 114-2, p. 2).

         On May 29, 2014, shortly after Butler originally issued her Bulletin, the Medical Director for the Illinois Department of Corrections, Dr. Louis Shicker, issued a memorandum to upper-level administrators (i.e., Wardens and Directors) on the prevention of heat-related illnesses (Doc. 114-4). The memo sets forth certain procedures that should be followed and measures that should be instituted depending on the heat index.[2] For instance, when the heat index reaches 90°F, water must be made available, and hard labor should be curtailed (Doc. 114-4). When the heat index reaches 95°F, hard labor must be stopped, and frequent showers should be permitted (Id.). And when the heat index reaches 100°F, all non-essential labor must be stopped, and ice and water should be made available in housing units (Id.).

         With respect to monitoring temperatures, Bill Westfall, a Correctional Sergeant assigned to the N-2 cell house between April 2014 and May 2015, indicated that a Unit Shift Report was completed during each shift memorializing the temperature of the cell house, measured by thermometers located on ...


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