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Killebrew v. Kuster

United States District Court, W.D. Wisconsin

March 27, 2017

HANS KUSTER and TIM IKERT, Defendants.

          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Plaintiff Shondell Killebrew, a Milwaukee resident formerly incarcerated at the Oshkosh Correctional Institution, brings Eighth Amendment and state-law negligence claims against defendants Hans Kuster and Tim Ikert for failing to do anything to fix the cold temperatures Killebrew was forced to endure in his cells. Each side has filed a motion for summary judgment. Dkt. 32 and 34. After considering the parties' submissions, I conclude that Killebrew fails to provide evidence showing that defendants were deliberately indifferent to a serious risk of harm from the temperature in his cells, and that Killebrew failed to comply with the notice-of-claim statute for his negligence claims. I will deny his motion for summary judgment, grant defendants' motion, and dismiss the case.


         I draw the following facts from the parties' summary judgment submissions.[1]

         Plaintiff Shondell Killebrew is currently a Milwaukee resident, but at the times relevant to this lawsuit, he was an inmate at the Oshkosh Correctional Institution (OCI). Defendant Hans Kuster is a captain at OCI. Defendant Tim Ikert is the building and grounds superintendent at OCI.

         This case concerns the temperature of Killebrew's cells in the Restrictive Housing Unit (RHU) at OCI. Defendants explain that the RHU is what was formerly referred to as the segregation unit. Killebrew was initially moved there on October 10, 2014, because of a conduct report filed against him. While he was in “temporary lockup status” that day, he made threats of self-harm, so he was moved to observation status in cell 102, near the officers' station on the north side of the building.[2] On October 13, he was moved out of observation to cell 28, which was on the part of the south tier closest to the middle of the unit, also close to the officers' station. Killebrew stayed in cell 28 until November 7, 2014, when he was moved to another building.

         All inmates in RHU are provided the same amount of clothing except for inmates in observation or control statuses. In observation status, clothing and property is determined by psychological unit staff. Beginning on October 13, 2014, Killebrew was in an RHU segregation cell and not on observation or control status. Inmates in RHU status are issued one pair of socks, one pair of undershorts, one t-shirt, one orange shirt, one pair of orange pants, and one pair of soft-soled shoes. All non-control-status or non-observation-status inmates in RHU are also provided two blankets along with their bedding. Property for inmates in observation or control status is determined on a case-by-case basis. Defendants also state that it is RHU practice to provide inmates with an additional heavy “wool-like” blanket from October to April.

         The RHU temperature is controlled by a computerized, automated heating system. The RHU is divided into heating zones containing four to five rooms. Air handlers supply 65-degree air to each zone, and booster coils adjust the temperature according to pre-set temperature points for each zone. In October and November 2014, the pre-set temperature for each zone in the segregation building at Oshkosh Correctional Institution was 71 degrees.

         If an inmate's cell is not the proper temperature, the inmate should advise security staff. Staff will take the temperature in the inmate's room. If the thermometer reads between 68 to 72 degrees, the room is within the normal temperature rage. If the temperature does not fall within that range, staff will submit a work order.

         Sean McWane (the “HVAC/Refrigeration Specialist-Advanced” at OCI, who is not a defendant in this case) has a computer in his office showing a layout of each building, the pre-set temperatures, and the actual temperatures of each zone. McWane receives an “alarm/notification” if a temperature drops below 68 degrees or above 79 degrees. McWane does not recall receiving an alarm in October or November 2014.

         Killebrew states that he was “subjected to incessant frigid temperatures.” Dkt. 32, at 3. Killebrew says that he told defendant Kuster about the problem on October 10, 2014, by explaining that the temperature made the pieces of metal lodged in his back cold (he has bullet fragments in his back from being shot years ago and continues to suffer from numbness and weakness in his legs and, to a lesser degree, his hands) and “would eventually leave [him] in pain.” Id. Kuster says that he had a conversation with Killebrew at some point while he was in observation in cell 102, and that Killebrew said that his feet were cold. Kuster says that he responded by telling Killebrew that, because of his observation status, Killebrew would have to talk to the psychologist about getting a blanket. The parties do not explain if they are referring to the same conversation.

         Killebrew says he brought the issue up again at his October 14 disciplinary hearing before Kuster and Ikert (by this point, Killebrew was out of observation status and in an RHU segregation cell), stating that the temperature was starting to cause him pain, but Kuster told him that it was not the proper time to raise the issue. Killebrew also states that he filled out an “Interview/Information Request” form addressed to Ikert on October 14, stating, “I have address[ed] this to you in regard to the inhuman conditions of the cold showers and temperatures in the cell and is wondering what's going on?” Dkt. 32-2. Killebrew says that he never heard back from Ikert.

         Killebrew says that he and other inmates “filed complaints and continued to verbalize the extreme cold that we were wantonly subjected to, ” Dkt. 32, at 3. But to whom these complaints were made, he does not say. On October 31, Correctional Sergeant Jason Mentzel (who is not a defendant) came to check the temperature. According to Killebrew, Mentzel said that the temperature was 78 degrees in the hallway. Inmates told Mentzel to measure the temperature in one of the cells. “Not even 5 minutes later, ” Mentzel retrieved the thermometer and stated that the temperature was 64 degrees. Id. at 4.

         Defendants' version of the events is as follows: On October 31, Mentzel responded to the complaint an inmate housed on the south tier near Killebrew. Mentzel brought a thermometer to an empty cell in the area and left it there for 15 minutes. Mentzel does not recall the precise reading of the thermometer, but he does remember that the temperature was under 68 degrees. Mentzel contacted maintenance. The heat was adjusted by maintenance immediately, by adjusting the dampers to make the cells warmer until the system could be properly reset. Approximately one hour after the work was completed, the inmates told Mentzel that their cells were at an acceptable level. Later that evening, an inmate on the north side of the building said that his cell was cold, so Mentzel wrote a work order for maintenance staff to check the north side when they were performing repairs to the south side. That as the only work order in the prison records related to temperature for October and November 2014. On November 3, 2014, a response to the work order was issued, stating “Reset tripped pump. Operational Ok.” That pump was in a different location, involving a different air handler, from where Killebrew was located.

         Based on his personal observations, defendant Kuster believes that during October and November 2014, the temperature in the south tier of the RHU was at or around the set temperature of 68 to 72 degrees. He does not remember ever feeling ...

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