United States District Court, E.D. Wisconsin
ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 152)
PAMELA PEPPER United States District Judge
Octavius Jordan filed a complaint alleging that the
defendants violated his constitutional rights when he was
confined at the Milwaukee County House of Correction (HOC).
Dkt. No. 1. The case is before the court on remand from the
United States Court of Appeals for the Seventh Circuit on the
plaintiff’s claim that the defendants subjected him to
cold temperatures, in violation of the Eighth Amendment. Dkt.
No. 124. The defendants have filed a motion for summary
judgment. Dkt. No. 152. The court will deny the motion.
States District Judge J.P. Stadtmueller screened the
complaint under 28 U.S.C. §1915A and permitted the
plaintiff to proceed on Eighth Amendment inadequate medical
treatment and unconstitutional conditions of confinement
(cold temperatures) claims. Dkt. No. 12 at 7. On December 29,
2014, the case was reassigned to this court.
March 15, 2016, the court granted defendants Armor
Correctional Health Service Inc., Floyd Elftman and Mai
Xiong’s motion for summary judgment; granted defendant
Dr. Thomas Gable’s motion for summary judgment; and
granted defendants Rebecca Goss, Michael Hafemann, Jose
Hernandez, Kerri McKenzie and Milwaukee County House of
Corrections’ motion for summary judgment. Dkt. No. 102.
The clerk entered judgment the next day. Dkt. No. 103.
plaintiff appealed, dkt. no. 104, and on February 27, 2017,
the Seventh Circuit vacated the district court’s
judgment and remanded the case for further proceedings on the
claims against Goss, Hafemann, Hernandez, McKenzie and the
county as to the temperatures to which the plaintiff was
subjected. Dkt. No. 124 at 6. The court of appeals stated in
As the district court correctly recognized, extreme cold may
violate the Eighth and Fourteenth Amendments. See Haywood
v. Hathaway, 842 F.3d 1026, 1030 (7th Cir. 2016);
Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir. 1997);
Walker v. Schult, 717 F.3d 119, 126 (2d Cir. 2013).
Like the district court, we conclude that Jordan and his
fellow prisoners’ attestations of freezing temperatures
during winters in the prison are enough to create a genuine
dispute about the temperature of Jordan’s unit.
We part company with the district court on the element of
deliberate indifference. A jury reasonably may believe that
Goss, who worked in the unit, and the superintendent and
assistant superintendents who oversaw the prison, had to have
been aware of such extreme temperatures in Jordan’s
unit, especially given the attestations that Jordan and other
inmates submitted numerous grievances about the cold. See
Gray v. Hardy, 826 F.3d 1000, 1008 (7th Cir. 2016)
(evidence that administrator “must have known”
about risk of harm posed by conditions of confinement is
sufficient for jury to find deliberate indifference);
Haywood, 842 F.3d at 1030-31 (evidence that warden
knew of extreme cold sufficient for jury to find deliberate
indifference). And if the unit was as cold as Jordan
represents, a jury may well believe that doing nothing other
than allowing Jordan to use his blanket in his cell was
“so plainly inappropriate [a response] as to permit the
inference that the defendants intentionally or recklessly
disregarded his needs.” Haywood, 842 F.3d at
1031 (quoting Hayes v. Snyder, 546 F.3d 516, 524
(7th Cir. 2008)) (reversing grant of summary judgment when
prisoner attested to frigid conditions and guards failed to
provide other means of warmth); see also Dixon, 114
F.3d at 643 (reversing grant of summary judgment when
prisoner in freezing cell had only standard issue blanket and
Moreover, Jordan’s evidence that the prison was
extremely cold for two consecutive winters despite frequent
inmate grievances about the situation is enough for a jury
reasonably to infer that the failure to provide adequate heat
was not just inadvertence but “a conscious decision not
to take action” on the county’s part, so as to
hold it liable for a custom of failing to provide adequate
heat. Glisson v. Ind. Dep’t of Corr., No.
15-1419, 849 F.3d 372, 381, 2017 WL 680350, at *7 (7th Cir.
Feb. 21, 2017); Monell v. New York City Dep’t of
Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978) (evidence of custom suffices to hold governmental
entity liable for constitutional torts). We note that as the
district court correctly determined, the Milwaukee House of
Correction “is not a legal entity separable from the
county government which it serves and is therefore not
subject to suit” under § 1983, see Whiting v.
Marathon Cnty. Sheriff's Dep’t, 382 F.3d 700,
704 (7th Cir. 2004), and so we substitute the county as
defendant, see Ball v. City of Indianapolis, 760
F.3d 636, 643 (7th Cir. 2014).
Finally, these defendants are not, as they argue, entitled to
qualified immunity on this claim. It has long been settled
that failing to provide adequate warmth to inmates violates
their constitutional rights. See Dixon, 114 F.3d at
Jordan v. Milwaukee Cty., 680 Fed.Appx. 479, 482-83
(7th Cir. 2017).
April 4, 2017, the court held a telephone status conference
during which counsel for the defendants pointed out that the
parties had not conducted discovery on the claim against the
county because Judge Stadtmueller’s screening order
hadn’t said whether the plaintiff could proceed on that
claim. Dkt. No. 125 at 1. Counsel for defendants suggested
that the court give the parties time to conduct limited
discovery on an official capacity claim against Milwaukee
County, and the plaintiff (unrepresented at that time)
agreed. Id. In granting this request, the court
explained that it would allow discovery ONLY on the claim
against Milwaukee County (the HOC) and that it did not reopen
discovery on all issues. Id. The court then set a
deadline for the completion of discovery and for filing a
dispositive motion related only to the issue of the
plaintiff’s claim against Milwaukee County. Dkt. No.
182 at 11:54.58 (audio of April 4, 2017 status hearing).
18, 2017, the court recruited a pro bono attorney for the
plaintiff. Dkt. No. 132.
9, 2018, the defendants filed their motion for summary
judgment. Dkt. No. 152. The defendants’ motion
is fully briefed and ready for resolution.
THE MOTION FOR SUMMARY JUDGMENT