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Rogers v. Ashworth

United States District Court, W.D. Wisconsin

November 13, 2017

JERMAINE ROGERS, Plaintiff,
v.
JOHN ASHWORTH, et al., Defendants.

          OPINION AND ORDER

          STEPHEN L. CROCKER MAGISTRATE JUDGE

         Pro se plaintiff Jermaine Rogers is proceeding on claims that prison staff at the Columbia Correctional Institution violated his rights under the constitution and state law by subjecting him to unsanitary conditions of confinement. Before the court are the parties' cross motions for summary judgment. Dkt. 17, 25. Because I conclude that no reasonable jury could conclude that defendants Neumaier, Bittelman, Ashworth, Kottka, Schneider or Meisner were deliberately indifferent to plaintiff's cell conditions, I am granting defendants' motion with respect to those defendants. However, because there are genuine disputes of material facts with respect to plaintiff's claim against defendant Nathaniel Christensen, I am denying defendants' motion as to Christensen. I am denying plaintiff's motion in full.

         From the parties' proposed findings of fact, responses and evidence in the record, I find the following facts to be undisputed unless otherwise noted.

         UNDISPUTED FACTS

         A. The Parties

         At all times relevant to this case, plaintiff Jermaine Rogers was incarcerated at the Columbia Correctional Institution (CCI) in Portage, Wisconsin. Defendants were employed at CCI: Nathaniel Christensen, Brian Neumaier and Travis Bittelman were correctional officers; Anthony Ashworth was the unit manager of the restrictive housing unit; James Kottka and Randy Schneider were sergeants; and Michael Meisner was the warden.

         B. Cell 34 in the Restrictive Housing Unit

          On February 24, 2012, inmate Terrance Grissom occupied cell 34 in the restrictive housing unit. Grissom threw feces and urine outside of the cell at an officer, and was subsequently transferred to Green Bay Correctional Institution. (Although plaintiff proposes as fact that Grissom “covered” his cell in feces and blood, plaintiff conceded at his deposition that he has no personal knowledge of or other evidence regarding what happened in cell 34 prior to his placement in the cell on February 29, 2012. Plt.'s Dep., dkt 52, at 20.)

         On February 26, 2012, inmate Leycester Zissler was placed in cell 34. (The record is silent as to whether cell 34 was power washed or otherwise cleaned before Zissler was placed in it.) He noticed the smell of feces and fecal matter on the cell door. After he complained to defendant Sergeant Schneider, Zissler was removed and the cell was cleaned. On February 27, 2012, inmate Isaiah Bell was moved into cell 34. Later that night, Bell smeared feces on his cell window while he cut his arm. Bell was subsequently moved out of cell 34.

         On February 29, 2012, staff ordered two inmate employees, known as “swampers, ” to power wash cell 34. Typically, when an inmate is removed from a cell, the cell is cleaned and inspected by inmate swampers before another inmate is placed in the cell. Swampers usually clean cells using disinfectant sprays and scrub brushes, but they may use a pressure washer if necessary. In particular, cells that contain feces are supposed to be cleaned using a pressure washer and a wet/dry vacuum.

         Defendant Officer Christensen inspected cell 34 after the two inmate swampers told him they were finished. Generally, when Christensen inspects a cell, he flushes and inspects the toilet, runs water in the sink, and inspects the window, mirror and trap. (Christensen says that when he inspected cell 34, he not see or smell any blood or feces. Rogers says there was an obvious smell of feces and visible feces and blood in the cell.)

         C. Rogers is Transferred to Cell 34

         At around 3:18 p.m. on February 29, 2012, defendant Christensen brought Rogers to cell 34. (Rogers says that when he was placed in the cell, he smelled feces immediately and noticed blood on the toilet flusher. Rogers says he complained to Christensen about the cleanliness of the cell, stating that there was a strong odor of feces and visible fecal matter in the crevices of the window on the door and on the window sill. Rogers says he asked for cleaning supplies and also told Christensen to tell defendant Sergeant Schneider that he wished to talk to him about his cell and that he wanted to be moved to a different cell. Christensen disputes this, stating that Rogers did not complain about the cleanliness or odor of his cell.)

         The next day, March 1, 2012, Rogers became sick after eating lunch. He believes he ingested fecal matter that was transferred to his food tray via the slot on his cell's door. He suffered severe stomach pains and vomiting. When defendant Officer Bittelman came by to collect Rogers' meal tray, Rogers refused to place his meal try in the trap. Rogers did not say anything to Bittelman at the time about feces or blood in his cell; nor did Bittelman see any feces or blood in Rogers' cell at the time. Bittelman notified his supervisor, Sergeant Millonig, who went to Rogers' cell and asked him to surrender the meal tray. Rogers refused, telling Millonig, “Fuck that. I want a white shirt and a nurse, my belly hurts.” (Rogers did not say that his stomach hurt because he had ingested fecal matter.) When Millonig asked again for the meal tray, Rogers repeated, “Fuck that I want a white shirt.” Millonig notified a lieutenant about the situation, and another officer was eventually able to retrieve the meal tray. Later that day, Rogers received a conduct report and was placed on a “bag meal” restriction as a result of his refusal to surrender his meal tray.

         The next day, March 2, 2012, Rogers mailed a grievance to defendant Ashworth, the unit manager, complaining about the strong odor and presence of fecal matter in his cell and requesting to be moved to a different cell. (Rogers says that on March 3, he complained to defendant Sergeant Kottka about the smell and feces in his cell. Kottka denies that Rogers complained to him on that day and says that Rogers did not complain to him about the cell until March 5, 2012.)

         On March 4, 2012, defendant Officer Neumaier placed Rogers' bag lunch in his cell trap. As Neumaier tried to secure the trap shut, Rogers threw the bag meal at Neumaier. Rogers was issued a conduct report for attempted battery. (Neumaier says he did not see or smell any feces or blood in the trap and that if he had, he would not have placed his own hand in the trap to deliver Rogers' meal bag. Neumaier also says that Rogers did not say anything to him at the time about feces or blood in his cell. Rogers disputes this, saying that he complained to Neumaier about feces in his cell, told him he would not accept the lunch bag because the cell door slot was contaminated with feces and asked to be moved to a different cell.)

         On March 5, Rogers complained to defendant Kottka that there was feces and blood in his cell. That same day, defendant Ashworth received the interview request from Rogers dated March 2, in which Rogers complained about his cell conditions. Ashworth talked to unit staff about Rogers' complaints. He also spoke with the inmate swampers who had cleaned cell 34 prior to Rogers being placed in the ...


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