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Osborne v. Meisner

United States District Court, E.D. Wisconsin

April 25, 2018




         Plaintiff Joshua Osborne (“Osborne”), a prisoner, brings this action pursuant to 42 U.S.C. § 1983 against Defendants, various employees at Redgranite Correctional Institution (“Redgranite”), alleging that they housed him in filthy, pest-ridden conditions which led to him suffer bug bites and a severe rash. (Docket #22 at 2-4). In particular, Osborne alleges that he was housed in a segregation cell that had “feces strewn on the floor and walls, ” was “forced to sleep on a mattress on the floor, next to a shower and shower drain that had insects coming out of the drain, ” and “in a single occupancy cell with another inmate.” See (Docket #72 at 1). He claims that the bugs coming from the shower drain bit him repeatedly, causing him to “develo[p] a severe rash on various parts of his body that progressed quickly into a burning[, ] painful suffrage of broken pus sacs.” Id. He also says that he had to endure his mattress being soaked by the shower and the urinating of his cellmate. See Id. at 9. He alleges that prison officials ignored his complaints about his cell conditions and his requests for medical care. See id.

         Osborne was allowed to proceed on three claims: (1) inadequate conditions of confinement, in violation of the Eighth Amendment; (2) medical malpractice under Wisconsin state law; and (3) deliberate indifference to his serious medical needs, in violation of the Eighth Amendment. Id. at 5-6. Defendants filed a motion for partial summary judgment as to the second and third claims, arguing that Plaintiff failed to exhaust his prison administrative remedies as to those claims before filing suit. (Docket #32). That motion was granted in an order dated December 27, 2017. (Docket #45).

         The Defendants have now filed a motion for summary judgment as to the remaining claim: that the detestable conditions of Osborne's cell in segregation violated his rights under the Eighth Amendment. (Docket #56). The motion has been fully briefed and, for the reasons stated below, it will be granted.


         Federal Rule of Civil Procedure 56 provides that the court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Boss v. Castro, 816 F.3d 910, 916 (7th Cir. 2016). A fact is “material” if it “might affect the outcome of the suit” under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. The court construes all facts and reasonable inferences in the light most favorable to the non-movant. Bridge v. New Holland Logansport, Inc., 815 F.3d 356, 360 (7th Cir. 2016). The court must not weigh the evidence presented or determine credibility of witnesses; the Seventh Circuit instructs that “we leave those tasks to factfinders.” Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010).

         2. RELEVANT FACTS

         2.1 Osborne's Failure to Dispute the Material Facts

         The relevant facts are undisputed because Osborne did not properly dispute them. In the Court's scheduling order, entered July 21, 2017, Osborne was warned about the requirements for opposing a motion for summary judgment. (Docket #14 at 3). Accompanying that order were copies of Federal Rule of Civil Procedure 56 and Civil Local Rule 56, both of which describe in detail the form and contents of a proper summary judgment submission. Most relevant here is Civil Local Rule 56(b)(2), which obligates the non-movant on summary judgment to file “a concise response to the moving party's statement of facts that must contain a reproduction of each numbered paragraph in the moving party's statement of facts followed by a response to each paragraph, including, in the case of any disagreement, specific references to the affidavits, declarations, parts of the record, and other supporting materials relied upon[.]” Civ. L. R. 56(b)(2)(B)(i).

         Next, on February 5, 2018, Defendants filed the instant motion for summary judgment. (Docket #56). In the motion, Defendants also warned Osborne about the requirements for his response as set forth in Federal and Local Rules 56. Id. at 1-2. He was provided with additional copies of those Rules along with Defendants' motion. See Id. at 3-11. In connection with their motion, Defendants filed a supporting statement of material facts and accompanying evidence that complied with the applicable procedural rules. (Docket #58-#70).

         In response, Osborne submitted a combined legal brief and a response to Defendants' statement of facts, but this document in no way suffices under the procedural rules to raise genuine disputes of fact. See (Docket #72). The document contains numerous assertions of fact by Osborne, but he neither cites nor attaches any evidence to corroborate any of these assertions-not even, for instance, his own sworn statements in a declaration. Instead, the Court has before it only Osborne's bald assertions that the facts are as he believes them to be. This is not what the rules require.

         Despite being twice warned of the strictures of summary judgment procedure, Osborne utterly failed to dispute Defendants' proffered facts. Smith v. Lamz, 321 F.3d 680, 683 (7th Cir. 2003). Though the Court is required to liberally construe a pro se plaintiff's filings, it cannot act as his lawyer, and it cannot delve through the record to find favorable evidence for him. See Waldridge v. Am. Hoescht Corp., 24 F.3d 918, 922 (7th Cir. 1994); Herman v. City of Chicago, 870 F.2d 400, 404 (7th Cir. 1989) (“A district court need not scour the record to make the case of a party who does nothing.”). Thus, the Court will deem Defendants' facts undisputed for purposes of deciding their motion for summary judgment. See Fed. R. Civ. P. 56(e); Civ. L. R. 56(b)(4); Hill v. Thalacker, 210 Fed.Appx. 513, 515 (7th Cir. 2006) (noting that district courts have discretion to enforce procedural rules against pro se litigants).[1]

         2.2 Facts Material to Defendants' Motion

         Osborne was housed in Redgranite's restrictive housing unit (“RHU”) from September 7, 2016 through October 3, 2016. Osborne was initially placed in the “D-wing” of the RHU, but was moved to cell C-6 on September 22, 2016. He remained in cell C-6 until October 3, 2016.

         Upon his placement into cell C-6, Osborne complained that he should not have a cell mate and that he should not be required to sleep on a dirty floor. Osborne alleges that when he arrived at cell C-6 and complained about sleeping on the dirty floor, Jason Ralls (“Ralls”), a correctional officer, threatened to tase him and issue him a conduct report if he did not voluntarily go into the cell.

         However, Ralls did not place Osborne in cell C-6 on September 22, 2016. Ralls typically worked in the RHU's “bubble, ” where he controlled the entrance/exit doors to the unit and cells. Further, RHU officers do not have the ability to use tasers in the unit. According to Ralls, Osborne never reported complaints about cell C-6 to him at any time, nor did Ralls ever observe abnormal conditions in the unit or smell human waste. If he had been made aware of Osborne's alleged serious bug bites and rash, Ralls would have checked on Osborne's condition and the condition of the cell. If Ralls had observed the type of rash and symptoms that Osborne In one passing mention in his brief, Osborne says that he “must rely on all the other evidence submitted to this point, ” (Docket #72 at 2), apparently referring to various affidavits and sets of documents he has filed throughout this case, sometimes in connection with a pending motion and sometimes not, see, e.g., (Docket #16, #18, #19, #25, #27, #39). However, he did not once cite any of these documents in his response to Defendants' statement of facts, leaving to the Court the task of combing the record for the evidentiary support for his attempted disputes. The Court's time and resources are too thinly stretched to do that sort of heavy lifting on behalf of any party, pro se or otherwise. Moreover, the Court cannot transform its duty of generous construction into an advocate's role. described in his complaint in this case, Ralls would have notified the prison Health Services Unit (“HSU”).

         Not all RHU cells are single cells. Osborne was not placed in a single cell because he did not have a medical need for a single cell and the prison's policy was to double cell inmates if there was not enough room for them to be single celled. True, cell C-6 had only one actual bed-a concrete slab about eighteen inches off the ground-but it was able to house two inmates by placing another mattress on the concrete floor. Both mattresses are approximately four inches thick. The dimensions of the cell are such that a mattress does not need to be placed in close proximity to the cell's toilet and floor drain, which are at the back of the cell. Instead, the floor mattress can be placed against the back of the cell door. See (Docket #70-1).[2]

         Staff conduct cell searches monthly and inspect cells on a daily basis during rounds. If a cell is in bad condition, the rounding staff would contact a supervisor. Cells are also searched when inmates are in other parts of the prison, such as recreation or the law library. If there were serious issues noted with the conditions of a cell, staff would notify a supervisor and a work order would be completed. If a particular cell is determined to be uninhabitable, inmates are housed in different cells until the problem is fixed.

         Inmates are provided ample access to staff and can make verbal complaints about cell conditions if necessary. For example, inmates have access to staff when they conduct rounds and when they deliver mail, medication, and meal trays. Inmates may also have access to staff when they are permitted to move about the institution, such as going to recreation or to make phone calls. There is ...

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