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Thomas v. Sgt. McCoy

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

January 16, 2020

SGT. MCCOY, et al., Defendants.



         Plaintiff Kenneth Thomas, formerly a detainee at the Cook County Jail, brings this pro se complaint pursuant to 42 U.S.C. § 1983, alleging that while confined at the jail, he had to spend ten days in a cell without a working toilet. Defendants have moved for summary judgment, arguing that a non-functioning toilet did not amount to an objectively serious deprivation, that Defendants themselves are not liable for the deprivation, and that Plaintiff did not suffer any physical injury as a result of the condition. For the reasons stated here, the motion is denied.


         I. Northern District of Illinois Local Rule 56.1

         Under Local Rule 56.1, a party moving for summary judgment is required to submit “a statement of material facts as to which the moving party contends there is no genuine issue and that entitle the moving party to judgment as a matter of law.” Petty v. City of Chicago, 754 F.3d 416, 420 (7th Cir. 2014). Each paragraph of the movant's statement of facts must include “specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in that paragraph.” L.R. 56.1(a). The opposing party must file a response to each numbered paragraph in the moving party's statement, “including, in the case of any disagreement, specific references to the affidavits, parts of the record, and other supporting materials relied upon.” L.R. 56.1(b)(3)(B). Unless appropriately rebutted, any material facts in the moving party's statement is deemed admitted. L.R. 56.1(b)(3)(C). The party opposing summary judgment also may present a separate statement of additional facts, also supported with record citations.

         Defendants filed their summary judgment motion and supporting materials [75] on September 5, 2018, and furnished Plaintiff with the Notice to Pro Se Litigant Opposing Motion for Summary Judgment that is required by Local Rule 56.2 [75-1]. The notice explained how Plaintiff was to respond to Defendants' motion and cautioned Plaintiff that the court would deem Defendants' factual contentions admitted if he failed to follow the procedures delineated in Local Rule 56.1. See, e.g., Apex Digital, Inc. v. Sears, Roebuck & Co., 735 F.3d 962, 965 (7th Cir. 2013); Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003).

         Although the court gave him additional time to do so, Plaintiff has not responded to Defendants' Rule 56.1 Statement in the manner set forth in the rule. Plaintiff did submit a brief declaration stating that the facts in his summary judgment response are true [86]. He also submitted a memorandum in which he challenges certain of Defendants' factual statements and arguments [87]. Although he is pro se, Plaintiff is obligated to comply with Local Rule 56.1. See Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006) (“even pro se litigants must follow rules of civil procedure”). The facts set forth in Defendants Local Rule 56.1(a)(3) Statement are therefore deemed admitted to the extent they are supported by evidence in the record. See Keeton v. Morningstar, Inc., 667 F.3d 880, 884 (7th Cir. 2012). The court will also, however, consider factual assertions Plaintiff has made in his response to Defendants' summary judgment motion, to the extent he has pointed to evidence in the record or could properly testify himself about the matters asserted. See Boykin v. Dart, No. 12 C 4447, 2014 WL 5611466, at *6 (N.D. Ill. Nov. 4, 2014) (Chang, J.) (“Although the Court is entitled to demand strict compliance with Local Rule 56.1, it ordinarily affords pro se plaintiffs significant leeway in responding to summary judgment filings.”). The court also takes account of Plaintiff's deposition testimony, including portions not mentioned in Defendants' Statement of Facts. See Bentz v. Hardy, 638 Fed.Appx. 535, 536 (7th Cir. 2016) (plaintiff's failure to respond properly to Defendants' Rule 56.1 Statement was not fatal where defendants principally relied on his deposition testimony in support of their motion, and his account of the conditions he endured was undisputed).

         II. Factual Background

         This lawsuit arises from Plaintiff's contention that from May 4, 2017, to May 14, 2017, he was housed in a cell in Division 6, Tier 2P, of the Cook County Jail with a non-functioning toilet and sink. (Defs.' Stmt. [75-2] at ¶ 1.) The problem began on the night of May 4, when Plaintiff's cellmate flushed the toilet and it would not stop flushing. (Pl.'s Dep. [75-3] at 24:20-25:2.) Plaintiff and his cellmate reported the problem to an unnamed correctional officer-who is not one of the Defendants in this case-and the officer turned off the water to his cell. (Id. at 25:4-10.) The water in the cell, both to the sink and the toilet, remained off for ten days. (Id. at 25:22-26:3.)

         A correctional officer told Plaintiff that the water would be fixed the next day, but Plaintiff does not recall the name of that officer. (Id. at 29:22-30:1.) Plaintiff testified that Sgt. McCoy was aware of the situation “the entire time.” (Id. at 43:2-10.) According to Plaintiff, Sgt. McCoy assured him and his cellmate that she would let the correctional officers know that the cell did not have working plumbing, and the officers would let them out to use the bathroom. (Id. at 30:17-23; 43:7-10.) Sgt. McCoy did sometimes release Plaintiff and his cellmate out to use the bathroom. (Id. at 30:17-18.) During the day shift, when Sgt. McCoy was at work, Plaintiff did not have any problems being released from his cell to use the bathroom, with the exception of one incident described below involving Defendant Officer Pitts. (Id. at 49:12-50:6.)

         During the time period in which Plaintiff's toilet was non-functioning, inmates were allowed time in the dayroom for three hours in the morning and three hours in the evening. (Defs.' Stmt. at ¶ 6.) At times, Plaintiff was allowed to use the dayroom bathroom after the 9 p.m. lockup. (Id. at ¶ 7.) Plaintiff testified that outside of the six hours per day of dayroom time, he was allowed to use the dayroom bathroom between seven and ten times. (Id. at ¶ 8.; see Pl.'s Dep. at 30:24-31:9.) Defendants, in their brief, characterize this testimony as indicating that Plaintiff was given access to a bathroom “up to ten times per day” in addition to his dayroom time. (See Brief in Supp. of Mot. for Summ. J. [75] at 8.) Plaintiff disputes this characterization; he asserts that he was allowed out of his cell to use the bathroom only seven to ten times total during the ten-day period. (See Pl.'s Resp. [87] at 1.) Construing the record in the light most favorable to Plaintiff, the court assumes he was allowed to use the toilet outside of his cell seven to ten times in the ten-day period in which his toilet was broken, in addition to any times he was able to use the bathroom during his dayroom time.

         On May 11, 2017, Plaintiff asked Defendant Officer Pitts for permission to use the dayroom bathroom at about 11 a.m. (See Pl.'s Dep. at 33:8-11.; 35:17-20.) Plaintiff had not used the dayroom bathroom that morning, as he was asleep in his cell during dayroom time (id. at 35:21-24) and had not used the bathroom since lockdown the previous night. (Id. at 39:39:5-11.) When Plaintiff asked Officer Pitts for permission to use the bathroom, she allegedly heard his request and shrugged her shoulders in response. (Id. at 36:3-23.) Ignoring Plaintiff, she left the deck “for maybe an hour or two.” (Id. at 36:4-6.)

         When Officer Pitts returned to the tier, Plaintiff told her that he had urinated on himself and asked for a uniform exchange and to speak to a sergeant. (Id. at 36:7-9.) Officer Pitts did not get a sergeant, but shortly before 3:00 p.m., she did give Plaintiff a new pair of pants. (Id. at 36:9-10; 40:17-23.) Plaintiff testified that he does not know whether Sgt. McCoy was working the day of this incident, but he did not tell her about it. (Id. at 50:7-15.)

         Outside of the incident with Officer Pitts, there were times overnight that Plaintiff could not use the bathroom because the officer was not in the “bubble” (correctional officer's office) or the officer told him that he would have to wait. (Defs.' Stmt. at ¶¶ 2-3.) Plaintiff does not know the names of these officers. (Pl.'s Dep. at 45:16-24.) On those occasions, Plaintiff would use the non-functioning toilet. (Defs.' Stmt. at ¶ 4.) Plaintiff testified that correctional officers knew that the toilet in his cell was broken and that he and his cellmate were using the non-functioning toilet. (Pl.'s Dep. at ...

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