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Lippert v. Hardy

United States District Court, N.D. Illinois, Eastern Division

July 19, 2017

DON LIPPERT, Plaintiff,


          JORGE L. ALONSO United States District Judge

         Plaintiff, Don Lippert, an Illinois inmate who was previously confined at Stateville Correctional Center, brought this action under 42 U.S.C. § 1983, claiming unconstitutional conditions of confinement at Stateville's F-House unit. Defendants Marcus Hardy, Quentin Tanner, [1] Royce Brown-Reed, and Salvador Godinez move for summary judgment and to strike plaintiff's declaration and Local Rule 56.1 submissions. For the reasons explained below, defendants' motion for summary judgment is granted in part and denied in part, and defendants' motion to strike is granted as to plaintiff's reliance on a sample of a “black substance” and denied in remaining part.


         A. Defendants' Motion to Strike

          Defendants ask the Court to strike plaintiff's Local Rule 56.1 response and parts of his statement of additional facts and declaration in support of his response to defendants' motion. Essentially, defendants seek to have the Court carve out what defendants deem to be objectionable or unpersuasive portions of plaintiff's summary judgment materials. This sort of motion to strike is particularly disfavored, Custom Vehicles, Inc. v. Forest River, Inc., 464 F.3d 725, 726 (7th Cir. 2006), and “waste[s] time by requiring judges to engage in busywork and judicial editing without addressing the merits of a party's claim, ” U.S. Bank National Association v. Alliant Energy Resources, Inc., No. 09-cv-078-bbc, 2009 WL 1850813, at *3 (W.D. Wis. June 26, 2009). “The way to point out errors in an [opponent's filing] is to file a reply brief, not to ask a judge to serve as editor. . . . The judiciary has quite enough to do deciding cases on their merits.” Custom Vehicles, 464 F.3d at 726. Defendants' motion does not serve much purpose and is therefore denied in large part (with an exception regarding plaintiff's sample of a “black substance, ” discussed below at note 2). To the extent necessary, the Court will address within its discussion of the summary judgment motion the material to which defendants object.

         B. Undisputed Material Facts

         Lippert was confined in F-House from 2010 to August 2012, and again from September 2014 until sometime in the latter half of 2016. He lived in several different cells in F-House. Godinez was the Director of the Illinois Department of Corrections (“IDOC”) from May 2, 2011 to March 2015. Hardy was the Warden at Stateville from December 2009 to December 31, 2012. Brown-Reed was the Healthcare Unit Administrator at Stateville from May 2010 through October 2015. She was on a leave of absence from March 2011 through November 2011 and from November 2013 through October 2015. Tanner was the Dietary Manager at Stateville during the relevant time frame.

         Plaintiff asserts that he experienced the following adverse living conditions in F-House: 1) cold temperatures in his cell, due to defective windows and insufficient clothing and bedding;2) dirty and moldy showers that do not properly drain; 3) cockroach and bird infestations; 4) unsanitary food conditions; and 5) constant excessive noise, due to the building design.[2] He further asserts that these conditions have contributed to his anger, depression, and anxiety, and caused him to experience headaches, rashes, and difficulty breathing. (ECF No. 100-1, Decl. of Donald Lippert ¶¶ 24-25.)

         Cold Conditions

         Plaintiff says that he was subjected to excessively cold conditions in at least three of his cells. His cell windows, which swung outward, had bent frames, missing seals, and missing latches that were “cut off” prior to 2010 and never replaced.[3] Although plaintiff could open and close his window with a string, the window defects still allowed cold air to enter his cells. In the winter, plaintiff was given plastic bags and tape, and he used his own towels, to try to plug the gaps in an effort to prevent cold air from entering; sometimes he was also given extra blankets, but he was still “freezing.” During plaintiff's time in F-House, he never witnessed the repair of a window latch, frame, or seal, but he did witness the replacement of entire window panes with immovable plexiglass sheets.

         Hardy was aware that “part of the [window] handle[s]” had been removed but believed that the windows were still “functioning.” (ECF No. 86-5, Dep. of Marcus Hardy at 75.) He received and read monthly reports of a collection of findings from Stateville security and healthcare staff regarding conditions at the prison (“Conditions Reports”). (Id. at 14-15.) Every Conditions Report for inspections conducted by security personnel from February 2010 to February 2015 states in capital letters and bold type the following about F-House: “Issues: On all galleries windows needs [sic] to be repaired. Status: Work orders have been submitted.” (ECF No. 105, Pl.'s Grp. Ex. K.) The “follow-up” notation states: “Above issues is [sic] pending completion.”

          Dirty and Moldy Showers

          At his deposition, plaintiff testified that there was mold growing in the F-House showers.[4] Inmate workers “scraped off” the mold, but it was not professionally removed, and it returned. Even though those workers cleaned the showers with brushes and disinfectant, and inmates who complained about the showers were sometimes given cleaning supplies, the showers were often dirty. The drains often backed up, which resulted in standing water. Plaintiff developed athlete's foot.

         Hardy testified that during his tenure as warden of Stateville, he was made aware of inmates' complaints about mold in the showers. (Hardy Dep. at 85.) Hardy also stated that “a lot of [the inmates] didn't understand the difference between a [dirty] shower . . . or mildew as opposed to mold, ” and that the maintenance department tested for mold, but Hardy was unaware of any test result that indicated the presence of mold. (Id. at 85-86.) Maintenance department supervisors, however, testified that their crew did not test for mold, and they were unaware of any instances of mold testing at the relevant times. Stateville documents relating to work orders for work performed in the F-House showers from January 2011 to December 2013 do not include anything concerning mold testing or removal.

         Pest Infestations

         There were cockroaches in plaintiff's cell “constantly” as well as outside his cell in the gallery; plaintiff saw them every day. (Lippert Decl. ¶ 17.) Plaintiff saw them on the food that he stored in his cell and sometimes awoke to them crawling on him at him at night. F-House was also infested with birds. They flew around the F-House galleries and defecated everywhere. Plaintiff says that a bird flew into his cell more than fifty times. At times, there were bird feces on plaintiff's cell's chuckhole (food slot). Plaintiff never saw the implementation of efforts to keep the birds out. He only twice witnessed F-House being power-washed to remove bird feces.

         Hardy acknowledged that cockroaches, along with mice and birds, were a “chronic problem” in F-House. (Hardy Dep. at 92-93.) Numerous Conditions Reports from the relevant period state that F-House was “not free” of “insects or rodents” and/or “birds or other animals.” (ECF No. 105-3, Pl.'s Grp. Ex. O.) In 2011 and 2012, Critter Ridder, an extermination company, sprayed in F-House.[5] During his tenure as warden, Hardy expanded the extermination services provided in F-House by having individual cells sprayed. Plaintiff, however, estimates that ...

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