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Jordan v. Hafemann

United States District Court, E.D. Wisconsin

September 20, 2019



          HON. PAMELA PEPPER United States District Judge

         Plaintiff 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.


         United 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.

         On 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.

         The 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.[1] The court of appeals stated in relevant part:

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 clothes).
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 642.

Jordan v. Milwaukee Cty., 680 Fed.Appx. 479, 482-83 (7th Cir. 2017).

         On 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).

         On May 18, 2017, the court recruited a pro bono attorney for the plaintiff. Dkt. No. 132.

         On July 9, 2018, the defendants filed their motion for summary judgment.[2] Dkt. No. 152. The defendants’ motion is fully briefed and ready for resolution.


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