Guide for Attorneys Recruited to Represent
Plaintiffs in Section 1983 Cases
Prepared by Staff Attorneys of the District Courts of the
United States Court of Appeals for the Seventh Circuit
2017

Contents:

The Basics of Prison Litigation Under Section 1983 ....................................2
Claims about Inadequate Medical Care .........................................................7
Claims About Conditions of Confinement ...................................................17
Claims Arising Under the Fourth Amendment (non‐prisoners) ...............27

The Basics of Prisoner Litigation Under Section 1983
I.

General Features of 42 U.S.C. § 1983 Claims

Elements of a Section 1983 Claim.
To succeed on a section 1983 claim, a plaintiff must prove “(1) the deprivation of
a right secured by the Constitution or federal law and (2) that defendants were acting
under color of state law.” Wilson v. Warren County, Ill., No. 15‐1939, 2016 WL 3878215, *2
(7th Cir. July 18, 2016). For an individual defendant to act “under color of state law” for
§ 1983 purposes, he must “misuse [ ] power, possessed by virtue of state law and made
possible only because the wrongdoer is clothed with the authority of state law.” Burrell
v. City of Mattoon, 378 F.3d 642, 649 (7th Cir. 2004) (internal quotation omitted).
Therefore, a section 1983 claim cannot be brought against a private citizen unless he acts
under color of state law. See London v. RBS Citizens, N.A., 600 F.3d 742, 746 (7th Cir.
2010) (Private persons “may not be sued [under section 1983] for merely private
conduct, no matter how discriminatory or wrongful.”) (internal quotation omitted).
Federal violation required.
42 U.S.C. § 1983 creates “a federal cause of action for the deprivation, under color
of [state] law, of a citizen’s rights, privileges, or immunities secured by the Constitution
and laws of the United States.” Livadas v. Bradshaw, 512 U.S. 107, 132 (1994) (internal
quotation omitted). Thus, no action lies under § 1983 unless a plaintiff has asserted the
violation of a federal right. See Middlesex County Sewage Auth. v. Natʹl Sea Clammers Ass’n,
453 U.S. 1, 19 (1981); Waubanascum v. Shawano County, 416 F.3d 658, 670 (7th Cir. 2005)
(neither negligence nor a violation of state law provide a basis for liability under §
1983); J.H. ex rel. Higgin v. Johnson, 346 F.3d 788, 793 (7th Cir. 2003) (“State law violations
do not form the basis for imposing § 1983 liability.”); Juriss v. McGowan, 957 F.2d 345,
349 n.1 (7th Cir. 1992) (“without a predicate constitutional violation, one cannot make
out a prima facie case under § 1983”).
Requirement of Personal Responsibility.
“It is well established that there is no respondeat superior liability under § 1983.”
Gayton v. McCoy, 593 F.3d 610, 622 (7th Cir. 2010). Without personal liability, there can
be no recovery under 42 U.S.C. ' 1983. Burks v. Raemisch, 555 F.3d 592, 593‐94 (7th Cir.
2009) (“Section 1983 does not establish a system of vicarious responsibility. Liability
depends on each defendant’s knowledge and actions, not on the knowledge or actions
of persons they supervise.”) (internal citation omitted). “To show personal involvement,
the supervisor must know about the conduct and about the conduct and facilitate it,

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approve it, condone it, or turn a blind eye for fear of what they might see.” Matthews v.
City of East St. Louis, 675 F.3d 703, 708 (7th Cir. 2012) (internal quotation omitted).
Although “an individual must be personally responsible for a constitutional
deprivation in order to be liable, personal responsibility is not limited to those who
participate in the offending act….” Childress v. Walker, 787 F.3d 433, 439‐40 (7th Cir.
2015). “Liability extends to those who, having a duty under the Constitution to the
plaintiff, act[ ] or fail[ ] to act with a deliberate or reckless disregard of plaintiffʹs
constitutional rights.” Id. at 440 (internal quotation omitted). “Liability can also attach if
the conduct causing the constitutional deprivation occurs at her direction or with her
knowledge or consent.” Id. (internal quotation omitted). “‘An inmate’s correspondence
to a prison administrator may ... establish a basis for personal liability under § 1983
where that correspondence provides sufficient knowledge of a constitutional
deprivation.’” Arce v. Barnes, No. 15‐3276, 2016 WL 5340268, *3 (7th Cir. Sept. 22, 2016)
(quoting Perez v. Fenoglio, 792 F.3d 768, 781–82 (7th Cir. 2015)).
Corporate Defendants.
Private corporations that contract with the State to perform a government
function, such as providing medical care to correctional facilities, act under color of law.
Employees of such entities act under color of law and can be sued for damages in their
individual capacity. While entities such as Corizon Health, Inc. and Wexford Health
Sources, Inc. are not vicariously liable for their employees’ deprivations of inmates’ civil
rights, they are treated as a municipality or similar entity for purposes of section 1983
actions. Jackson v. Illinois Medi‐Car, Inc., 300 F.3d 760, 766 (7th Cir. 2002). This means that
to maintain a viable section 1983 claim against such an entity, “a plaintiff must
demonstrate that a constitutional deprivation occurred as the result of an express policy
or custom of the government unit.” Id. “Unconstitutional policies for purposes of § 1983
liability fall into three categories: (1) an express policy that, when enforced, causes a
constitutional deprivation; (2) a widespread practice that, although not authorized by
written law or express municipal policy, is so permanent and well settled as to
constitute a custom or usage with the force of law; or (3) an allegation that the
constitutional injury was caused by a person with final policymaking authority.” Estate
of Moreland v. Dieter, 395 F.3d 747, 758‐59 (7th Cir. 2005) (internal quotation omitted).

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II.

Immunities

In prisoner suits, defendants are generally federal, state, or county employees.
Different laws of sovereign immunity apply to each group. Generally, the following
rules apply to each group:
(1) Federal officials may not be sued for damages in their official capacity except
under the Federal Tort Claims Act. 28 U.S.C.A. § 2680 (West Supp. 2001). In all other
actions they must be sued for damages in their individual capacity under Bivens v. Six
Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971); see Glaus v.
Anderson, 408 F.3d 382, 389 (7th Cir. 2005). Federal officials must be sued in their official
capacity for injunctive relief. Such relief is based on a district court’s inherent power to
enjoin an unconstitutional practice of depriving constitutional rights.
(2) State officials may be sued under section 1983 only in their individual
capacity for damages, and in their official capacity for injunctive relief. See Edelman v.
Jordan, 415 U.S. 651 (1974) (holding that the Eleventh Amendment bars suits for
retrospective damages relief against a state).
(3) City and county officials may be sued in both their official and individual
capacities. In addition, cities may be sued directly for retrospective damages or
prospective relief. Under Monell v. Dept of Soc. Servs., 436 U.S. 658 (1978), however,
respondent superior is not a basis for municipal liability. But see Shields v. Illinois Dept of
Correction, 746 F.3d 782, 790 (7th Cir. 2014) (finding “substantial grounds to question the
extension of the Monell holding for municipalities to private corporations”). Municipal
liability is based on injury caused by a “policy or custom.”
III.

Exhaustion of Administrative Remedies

General Rule.
The Prison Litigation Reform Act (“PLRA”) requires that a prisoner exhaust
“such administrative remedies as are available” before bringing a suit “with respect to
prison conditions under section 1983 … or any other Federal law….” 42 U.S.C.
§ 1997e(a). “[T]he PLRA’s exhaustion requirement applies to all inmate suits about
prison life, whether they involve general circumstances or particular episodes, and
whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516,
532 (2002).

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Strict Compliance Required
The Seventh Circuit requires “strict compliance” with the exhaustion
requirements. Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). This means that a
“prisoner must comply with the specific procedures and deadlines established by the
prison’s policy.” King v. McCarty, 781 F.3d 889, 893 (7th Cir. 2015); see also Dale v. Lappin,
376 F.3d 652, 655 (7th Cir. 2004) (“In order to properly exhaust, a prisoner must submit
inmate complaints and appeals ‘in the place, and at the time, the prison’s administrative
rules require.’”) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002)). Even
if the prisoner believes the administrative process will ultimately be futile, he must
exhaust. King, 781 F.3d at 893. Even if the relief sought, such as monetary damages,
cannot be granted through the administrative process, a prisoner must exhaust.
Woodford v. Ngo, 548 U.S. 81, 85 (2006);
Burden of Proof
Because exhaustion is an affirmative defense, “the burden of proof is on the
prison officials.” Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir. 2006). If the defendant
demonstrates that a plaintiff failed to complete the exhaustion process in accordance
with prison policies, it might be because the process was not “available” to the plaintiff.
“Prison officials may not take unfair advantage of the exhaustion requirement, … and a
remedy becomes ‘unavailable’ if prison employees do not respond to a properly filed
grievance or otherwise use affirmative misconduct to prevent a prisoner from
exhausting.” Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). For example, “[p]risoners
are required to exhaust grievance procedures they have been told about, but not
procedures they have not been told about.” King, 781 F.3d at 896 (7th Cir. 2015). In
addition, “exhaustion is not required when the prison officials responsible for
providing grievance forms refuse to give a prisoner the forms necessary to file an
administrative grievance.” Hill v. Snyder, 817 F.3d 1037, 1041 (7th Cir. 2016). In those
instances, the plaintiff prisoner is considered to have exhausted his available
administrative remedies. See Turley v. Rednour, 729 F.3d 645, 650 n. 3 (7th Cir. 2013)
(collecting cases of prison’s failure to respond).
Scope of Exhaustion Rules
“The ‘applicable procedural rules’ that a prisoner must properly exhaust are
defined not by the PLRA, but by the prison grievance process itself.” Maddox v. Love,
655 F.3d 709, 721 (7th Cir. 2011). If a prisoner fails to properly use the grievance process,
prison officials “can refuse to hear the case, and the prisoner’s claim can be indefinitely
unexhausted.” Id. (internal quotation omitted).
For state prison inmates, Indiana Department of Correction (“IDOC”) Policy and
Administrative Procedure 00‐02‐301, Offender Grievance Process, is the IDOC policy
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governing the grievance process. This policy is revised and updated from time to time.
The grievance process for state inmates includes an attempt to resolve the complaint
informally, as well as two formal steps: a formal written level one grievance, and then
an appeal of the response to the level one grievance. If an offender is unable to resolve
his complaint or concern informally, the offender is permitted to file a formal grievance.
An offender wishing to file a formal grievance must submit a completed grievance form
no later than twenty (20) working days from the date of the incident giving rise to the
complaint or concern. An appeal must be submitted within ten (10) working days from
the date of receipt of the grievance response. Exhaustion of the grievance procedure
requires pursuing an appeal to the final step of the grievance process.
With respect to federal inmates, the Bureau of Prisons (“BOP”) has promulgated
an administrative remedy system which is codified in 28 C.F.R. § 542.10, et seq., and
BOP Program Statement 1330.18, Administrative Remedy Program. The administrative
remedy process is a method by which an inmate may seek formal review of a complaint
related to any aspect of his imprisonment. 28 C.F.R. § 542.10. To exhaust his remedies,
an inmate must first file an informal remedy request through an appropriate institution
staff member via a BP‐8, prior to filing a formal administrative remedy request with the
Warden (BP‐9). If the issue is not resolved, the inmate must filed an appeal with the
Regional Director (BP‐10) and then with General Counsel (BP‐11).
Inmates in county jails are also required to exhaust available administrative
remedies before they file a section 1983 action. Each jail has its own policy for inmates
to exhaust administrative remedies.

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Claims about Inadequate Medical Care
I.

Who Must Provide the Prisoners With Medical Care?
A. Prisoners are not able to obtain their own medical services, so the Constitution
requires prison authorities to provide them with reasonably adequate medical
care.
Estelle v. Gamble, 429 U.S. 97, 103‐04 (1976) (“An inmate must rely on prison
authorities to treat his medical needs; if the authorities fail to do so, those
needs will not be met. . . . The infliction of such unnecessary suffering is
inconsistent with contemporary standards of decency as manifested in
modern legislation codifying the common‐law view that ‘[i]t is but just that
the public be required to care for the prisoner, who cannot by reason of the
deprivation of his liberty, care for himself.’”)

II.

Who can the Prisoner Sue?
A. Doctors and other medical personnel (including those of private corporations
who contract with local/state governments) can be liable for the consequences of
their own acts or omission that amount to deliberate indifference.
Palmer v. Marion County, 327 F.3d 588, 594 (7th Cir. 2003) (“Because §1983
does not allow actions against individuals merely for their supervisory role of
others, individual liability under 42 U.S.C. §1983 can only be based on a
finding that the defendant caused the deprivation at issue.”) (internal
quotations and citations omitted).
B. Correctional personnel who fail to obtain help for a prisoner, keep the prisoner
from seeing the medical staff, or interfere with prescribed treatment.
Dobbey v. Mitchell‐Lawshea, 806 F.3d 938, 940 (7th Cir. 2015) (“[A] guard
who is aware of complaints of pain and does nothing to help a suffering
prisoner obtain treatment is likewise exhibiting deliberate indifference.”)
C. Wardens and other supervisors are not deliberately indifferent when the rely on
the judgment of qualified medical personnel. But they may be deliberately
indifferent if they fail to provide adequate staff or qualified staff, if they maintain

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policies that interfere with adequate medical care, or if they fail to remedy
unlawful conditions that they know about.
Arnett v. Webster, 658 F.3d 742, 755 (7th Cir. 2011) (“Non‐medical
defendants . . . can rely on the expertise of medical personnel. We have
previously stated that if a prisoner is under the care of medical experts, a
non‐medical prison official will generally be justified in believing that the
prisoner is in capable hands. . . . However, non‐medical officials can be
chargeable with deliberate indifference where they have a reason to believe
(or actual knowledge) that prison doctors or their assistants are mistreating
(or not treating) a prisoner.”) (internal quotations and citations omitted).
D. County or city governments or private corporations if a prisoner’s injury was
caused by a city/county/corporate policy.
Davis v. Carter, 452 F.3d 686, 691 (7th Cir. 2006) (“To establish [Countyʹs]
liability under 42 U.S.C. §1983, the plaintiff was required to show that
[plaintiff] was deprived of a federal right, as a result of an express municipal
policy, widespread custom, or deliberate act of a decision‐maker for
[County], which proximately caused his injury.”) (citing Monell v. Dep’t of
Soc. Servs. of New York, 436 U.S. 658, 690‐91 (1978)).
BUT, while federal prisoners may bring Bivens actions for damages against
prison employees or employees of a private corporation that contracts with
the Bureau of Prisons, they may not bring actions against the corporations
that contract with the Federal Bureau of Prisons.
III.

Which Amendment Applies?

A. Arrestee/Pretrial Detainee (awaiting a probable cause determination) , Fourth
Amendment: “The relevant legal standard for arrestees who have been seized
but who have not yet had their probable cause hearing . . . comes from the Fourth
Amendment, not the Fourteenth, and certainly not the Eighth. The issue is
whether the state actor’s ‘response to [the arrestee]’s medical needs was
objectively unreasonable’ and ‘caused the harm of which [the arrestee]
complains.’” Currie v. Chhabra, 728 F.3d 626, 631 (7th Cir. 2013).
Williams v. Rodriguez, 509 F.3d 392, 403 (7th Cir. 2007) (identifying four
factors that are relevant for ascertaining whether a defendantʹs conduct was
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objectively unreasonable: (1) whether the officer is given notice of the
arresteeʹs medical need, whether by word or through observation of the
arresteeʹs physical symptoms; (2) the seriousness of the medical need, though
the severity of the medical condition need not, on its own, rise to the level of
objective seriousness required under the Eighth and Fourteenth
Amendments; (3) the scope of the requested treatment; and (4) police
interests, which is wide‐ranging in scope and can include administrative,
penological, or investigatory concerns) (citing Sides v. City of Champaign,
496 F.3d 820 (7th Cir. 2007)).
B. Pretrial Detainee (post determination of probable case) and Civil Detainee,
Fourteenth Amendment (although Eighth Amendment standards apply): “We
have held that there is little practical difference, if any, between the standards
applicable to pretrial detainees and convicted inmates when it comes to
conditions of confinement claims, and that such claims brought under the
Fourteenth Amendment are appropriately analyzed under the Eighth
Amendment test.” Smith v. Dart, 803 F.3d 304, 310 (7th Cir. 2015) (citing Smego
v. Mitchell, 723 F.3d 752, 756 (7th Cir. 2013), Hart v. Sheahan, 396 F.3d 887, 892
(7th Cir. 2005), Weiss v. Cooley, 230 F.3d 1027, 1032 (7th Cir. 2000)).
McGee v. Adams, 721 F.3d 474, 480 (7th Cir. 2013) (“Claims concerning the
conditions of civil detainees are assessed under the due process clause of the
Fourteenth Amendment. . . . For claims of deliberate indifference, like this
one, this Court has previously found it convenient and entirely appropriate to
apply the same standard to claims arising under the Fourteenth Amendment
(detainees) and Eighth Amendment (convicted prisoners) without
differentiation.”) (internal quotations and citations omitted).
C. Prisoner, Eighth Amendment: “[D]eliberate indifference to serious medical needs
of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ . . .
proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976).
IV.

What Constitutes Deliberate Indifference Under the Eighth Amendment?

A. Basic Rule:
The defendants must have had actual knowledge of an objectively serious
medical need and they did not respond reasonably to the need.

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Farmer v. Brennan, 511 U.S. 825, 837 (1994); Greeno v. Daley, 414 F.3d 645,
652‐53 (7th Cir. 2005) (“A claim of deliberate indifference to a serious medical
need contains both an objective and a subjective component. To satisfy the
objective component, a prisoner must demonstrate that his medical condition
is ‘objectively, sufficiently serious.’. . . To satisfy the subjective component, a
prisoner must demonstrate that prison officials acted with a ‘sufficiently
culpable state of mind.’ The officials must know of and disregard an excessive
risk to inmate health; indeed they must ‘both be aware of facts from which
the inference could be drawn that a substantial risk of serious harm exists’
and ‘must also draw the inference.’”)
i. Actual Knowledge
1. Statements that medical staff did not know about the condition when
there is contrary evidence will be insufficient for summary judgment.
Conley v. Birch, 796 F3d 742, 747 (7th Cir. 2015) (“An official may not
escape liability by ‘refus[ing] to verify underlying facts that [s]he
strongly suspect[s] to be true.’”) (quoting Farmer v. Brennan, 511 U.S.
825, 843 n. 8 (1994)).
2. An official who has a sincere belief that an inmate is malingering will
not be found to be deliberately indifferent. However, an official’s
statement that she believed a prisoner was malingering when there is
evidence to the contrary will not prevail at summary judgment.
Townsend v. Cooper, 759 F.3d 678, 690 (7th Cir. 2014) (citing Rice ex
rel. Rice v. Correctional Med. Servs., 675 F.3d 650, 684 (7th Cir. 2012));
Walker v. Benjamin, 293 F.3d 1030, 1040 (7th Cir. 2002) (nurse and
doctor’s refusal to give prescribed pain medication could be
deliberate indifference; their proffered excuse that they thought
prisoner was malingering in order to get narcotics was a question for
the jury).
ii. Objectively Serious Medical Need
1. Not all medical conditions are sufficiently serious to implicate the Eighth
Amendment.

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Reed v. McBride, 178 F.3d 849, 852‐53 (7th Cir. 1999) (“For example, a
prison medical staff’s refusal to ‘dispense bromides for the sniffles or
minor aches and pains or a tiny scratch or a mild headache or minor
fatigue . . . does not violate the Constitution.” (quoting Cooper v. Casey,
97 F.3d 914, 916 (7th Cir. 1996))).
2. A serious medical need is often defined as one that has been diagnosed
by a doctor as requiring treatment or one that is so obvious that even a
lay person would recognize the need for a doctor’s attention.
Hayes v. Snyder, 546 F.3d 516, 522 (7th Cir. 2008); Greeno v. Daley,
414 F.3d 645, 652‐53 (7th Cir. 2005).
3. May also look to whether condition causes pain, disables a prisoner,
interferes with daily activities, or is chronic (e.g., cluster headaches).
Edens v. Larson, 110 Fed.Appx. 710, 714 (7th Cir. 2004)
(unpublished) (finding cluster headaches to be objectively serious
because, if left untreated, they can be severely painful, even to the
point of disability).
4. In cases where there is a delay of treatment or an interruption in
treatment, the court will focus on the seriousness of the delay or
interruption, not on the seriousness of the underlying condition.
Conley v. Birch, 796 F.3d 742 (7th Cir. 2015) (“In cases where prison
officials delayed rather than denied medical assistance to an
inmate, the plaintiff must offer verifying medical evidence that the
delay (rather than the inmate’s underlying condition) caused some
degree of harm.”) (quoting Jackson v. Pollion, 733 F.3d 786, 790 (7th
Cir. 2013)).
5. Includes serious dental needs (e.g., extraction of decayed teeth, need for
dentures).
Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001) (allegation of
inability to chew, bleeding, headaches, and disfigurement from lack
of dentures states a serious medical need).

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iii. Deliberate Indifference
1. Deliberate indifference occurs when a defendant realizes that a
substantial risk of serious harm to a prisoner exists, and then disregards
that risk.
Perez v. Fenoglio, 792 F.3d 768, 776 (7th Cir. 2015).
2. Common fact patterns giving rise to claim of deliberate indifference:
a. Direct Evidence of Deliberate Indifference.
Greeno v. Daley, 414 F.3d 645, 654 (7th Cir. 2005) (nurse told
prisoner that if he did not stop “hassling” the medical staff he
would be “locked up”); Board v. Farnham, 394 F.3d 469, 481‐82 (7th
Cir. 2005) (breaking off teeth rather than extracting them and denial
of toothpaste for extended periods supports Eighth Amendment
claim); Murphy v. Walker, 51 F.3d 714, 719 (7th Cir. 1995) (prisoner
suffering pain after head injury who was told by guard to “stop
being a baby” and learn to live with the pain could proceed with
claim).
b. Denial or Delay of Access to Treatment. May include interference
with access to medical personnel or to a hospital, or failure of medical
personnel to timely deal with a prisoner’s serious condition. May also
include persistence in an easier but ineffective course of treatment.
Actionable only if delay results in substantial harm (met if pain and
suffering is prolonged). Verifying medical evidence may be required
to support a claim that delay has caused harm.
Ortiz v. Webster, 655 F.3d 731, 735 (7th Cir. 2011); Berry v.
Peterman, 604 F.3d 435, 441 (7th Cir. 2010); Dobbey v. Mitchell‐
Lawshea, 806 F.3d 938 (7th Cir. 2015) (“A dentist demonstrates
deliberate indifference by failing to treat the patient promptly, thus
prolonging the patient’s pain while knowing that the patient may
well be in serious pain that is treatable.”); Rowe v. Gibson, 798 F.3d
622 (7th Cir. 2015) (limiting the administration of heartburn
medication to certain times of day could amount to deliberate
12

indifference given prisoner’s alleged severe pain, which could have
been avoided if medication had been administered earlier).
c. Denial of Access to an Specialist or Qualified Medical Personnel.
Referral to a specialist may be required if prisoner’s needs are beyond
capacity of handling physician.
Hayes v. Snyder, 546 F.3d 516, 526 (7th Cir. 2008) (refusal to refer to
a specialist where doctor did not know cause of reported extreme
pain made no sense and could support deliberate indifference
finding); Greeno v. Daley, 414 F.3d 645, 655 (7th Cir. 2005) (holding
that refusal to refer prisoner to a specialist or order a colonoscopy
despite intense abdominal pain could support deliberate
indifference).
i. However, prisoners do not have a constitutional right to see the
doctor of their choice.
Powell v. Shah, 618 Fed. Appx. 292 (7th Cir. 2015) (Doctors not
deliberately indifferent when they decided not to refer prisoner
to a specialist or PT because, after appropriate exams, they
concluded his injury could be treated with a brace, pain meds,
and exercise. Mere disagreement with doctors’ treatment
decisions is not actionable); Pyles v. Fahim, 771 F.3d 403 (7th
Cir. 2014) (Prison physicianʹs failure to refer prisoner to
specialist after prisoner complained of back pain was not
deliberate indifference to prisonerʹs serious medical needs;
prisoner had common ailment, physician prescribed
medications, and, after those medications did not appear to
help, physician tried new medications or dosages).
d. Failure to Inquire into Essential Facts Necessary to Make a
Professional Judgment. May include failure to conduct an adequate
examination, failure to ask necessary questions or take a history, or
failure to conduct tests called for by the symptoms.
Rowe v. Gibson, 798 F.3d 622, 627 (7th Cir. 2015) (“He opined
with confidence about what Rowe needed or didn’t need—yet
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never examined him—and offered no basis for his off‐the‐cuff
medical opinion.”); Conley v. Birch, 796 F3d 742, 747 (7th Cir.
2015) (“An official may not escape liability by ‘refus[ing] to
verify underlying facts that [s]he strongly suspect[s] to be
true.’”) (quoting Farmer v. Brennan, 511 U.S. 825, 843 n. 8
(1994)).
e. Systemic Deficiencies. May include insufficient staffing, deficient
facilities and/or procedures, overly restrictive rules or policies
unrelated to prisoner’s medical needs, or failure to stock prescribed
medications
Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir. 1983)
(deliberate indifference can be evidenced by “proving there are
such systemic and gross deficiencies in staffing, facilities,
equipment, or procedures that the inmate population is
effectively denied access to adequate medical care.” (quoting
Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980))); Gil v.
Reed, 381 F.3d 649, 663 n. 3 (7th Cir. 2004).
f. Cost. It is not permissible to deny a prisoner adequate medical care
because it is too costly.
Ralston v. McGovern, 167 F.3d 1160, 1162 (7th Cir. 1999) (the
“civilized minimum” of medical care “is a function both of
objective need and of cost. The lower the cost, the less need has to
be shown, but the need must still be shown to be substantial.”);
Luckett v. Heidorn, 566 Fed.Apxx. 516, 520 (7th Cir. 2014)
(unpublished) (prison officials can take into account the cost of
alternative treatments so long as they do not choose a treatment
that they know will be ineffective).
But, “Under the Eighth Amendment, [a plaintiff] is not entitled to
demand specific care. She is not entitled to the best care possible.
She is entitled to reasonable measures to meet a substantial risk of
serious harm to her.” Forbes v Edgar, 112 F.3d 262, 267 (7th Cir.
1997).

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g. Failure to Carry out Medical Orders. May include the failure to
provide prescribed medication, the failure to act on medical
recommendations for surgery or other specialized care (often not
available in the prison), the failure to carry out a specialist’s
recommendations (from before or after incarceration).
Jones v. Simek, 193 F.3d 485, 492 (7th Cir. 1999) (citing failure to
follow specialist’s recommendations as supporting claim of
deliberate indifference); Walker v. Benjamin, 293 F.3d 1030, 1040
(7th Cir. 2002) (nurse and doctor’s refusal to give prescribed pain
medication could be deliberate indifference; their proffered
excuse that they thought prisoner was malingering is a question
for the jury).
i. The circumstances matter: prison officials are not necessarily
required to continue treatments started or recommended by the
prisoner’s own physician, nor must the necessarily follow the
orders of a specialist if they can argue that failure to follow such
recommendations merely represents a difference in opinion.
ii. Prison officials must provide special diets that are medically
ordered, but brief or harmless delays/interruptions are not
unconstitutional.
Sellers v. Henman, 41 F.3d 1100, 1102 (7th Cir. 1994).
h. Extreme Cases of Bad Judgment or Failure to Exercise Judgment. A
plaintiff can show that the professional disregarded the need only if
the professional’s subjective response was so inadequate that it
demonstrated an absence of professional judgment, that is, that no
minimally competent professional would have so responded under
those circumstances. May include gross departures from accepted
medical standards or failure to follow prison medical care protocols.
Collignon v. Milwaukee County, 163 F.3d 982, 989 (7th Cir. 1998);
Pyles v. Fahim, 771 F.3d 403, 409 (7th Cir. 2014); Holloway v. Del.
Cnty. Sheriff, 700 F.3d 1063, 1073 (7th Cir. 2012); Johnson v.
Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006).

15

i. Cursory Treatment that Essentially Equates to No Treatment. “If all
the Eighth Amendment required was that prison officials provide
some immediate and ongoing attention, they could shield themselves
from liability (and save considerable resources) by shuttling sick or
injured inmates to perfunctory medical appointments wherein no
meaningful treatment is dispensed. Needless to say, the
responsibilities imposed by the Constitution are not so easily
avoided.” Perez v. Fenoglio, 792 F.3d 768, 777 (7th Cir. 2015).
Hughes v. Joliet Correctional Center, 931 F.2d 425, 428 (7th Cir.
1991) (evidence that medical staff treated the plaintiff “not as a
patient, but as a nuisance,” and “were insufficiently interested in
his health to take even minimal steps to guard against the
possibility that the injury was severe” could support a finding of
deliberate indifference).
B. Excluded from Basic Rule:
What Does Not State a Claim under the Eighth Amendment
i. Negligence/medical malpractice. To avoid malpractice, a doctor need only
exercise ordinary knowledge, skill, and care ordinarily employed by members
of the profession in good standing. The mere fact that treatment is
unsuccessful or has a bad result does not mean there has been malpractice.
Burton v. Downey, 805 F.3d 776, 786 (7th Cir. 2015) (holding that a two‐day
delay in distributing medication to a detainee did not amount to deliberate
indifference because, “Negligence, gross negligence, or even ‘recklessness’
as that term is used in tort cases, is not enough.”) (quoting Shockley v.
Jones, 823 F.2d 1068, 1072 (7th Cir. 1987)); McGee v. Adams, 721 F.3d 474,
481 (7th Cir. 2014) (“To establish deliberate indifference, [plaintiff] must
meet essentially a criminal recklessness standard, that is, ignoring a known
risk. Even gross negligence is insufficient to impose constitutional liability . .
. .”) (citations omitted).
ii. Disagreements with Doctor’s Exercise of Judgment. The court will not take
sides in disagreements with a medical provider’s judgment regarding
treatment. As long as there has been an exercise of professional judgment, the
court will generally hold that the Constitution has been satisfied.
16

Duckworth v. Ahmad, 532 F.3d 675, 681 (7th Cir. 2008) (failure to rule out
cancer immediately in light of persistent bloody urine may have been
malpractice but was not deliberate indifference); Burton v. Downey, 805
F.3d 776, 786 (7th Cir. 2015) (“evidence that another doctor would have
followed a different course of treatment is insufficient to sustain a deliberate
indifference claim”).

17

Claims About Conditions of Confinement
I.

General Law

A prisoner’s claim of unconstitutional conditions of confinement is analyzed
under the Eighth Amendment’s cruel and unusual punishment clause. See Farmer v.
Brennan, 511 U.S. 832, 834 (1994). A pretrial detainee’s claim of unconstitutional
conditions of confinement is analyzed under the Fourteenth Amendment’s Due Process
Clause. Smith v. Dart, 803 F.3d 304, 309 (7th Cir. 2015). However, given that the
protections under the Fourteenth Amendment’s Due Process Clause are at least as
broad as those under the Eighth Amendment for convicted prisoners, the courts look to
Eighth Amendment case law when addressing a pretrial detainee’s claims. Rice v.
Correctional Med. Serv., 675 F.3d 650, 664 (7th Cir. 2012). A prisoner/pretrial detainee is
entitled to live in conditions that do not amount to “punishment.” Bell v. Wolfish, 441
U.S. 520, 535 (1979). Detainees are entitled to be confined under humane conditions
that provide for their “basic human needs.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
“The Constitution does not mandate comfortable prisons, but neither does it permit
inhumane ones[.]” Snipes v. DeTella, 95 F.3d 586, 590 (7th Cir. 1996). A prisoner need
not have contracted a disease or suffered any physical pain for a jury to reasonably
conclude that conditions constituted a constitutional violation. See Thomas v. Illinois, 697
F.3d 612, 614 (7th Cir. 2012) (discussing harms a prisoner may endure due to insect
infestation, including actual disease, psychological and probabilistic harm).
To establish a constitutional violation with respect to an inmate’s living
conditions, he must be able to demonstrate both: (1) the conditions were objectively so
adverse that they deprived him “of the minimal civilized measure of lifeʹs necessities,”
and (2) the defendants acted with deliberate indifference with respect to the conditions.
Townsend v. Fuchs, 522 F.3d 765, 773 (7th Cir. 2008) (quoting Farmer v. Brennan, 511 U.S.
832, 834 (1994)). “Lifeʹs necessities include shelter, heat, clothing, sanitation, and
hygiene items.” Woods v. Schmeltz, No. 14‐CV‐1336, 2014 WL 7005094 at *1 (C.D. Ill. Dec.
11, 2014) (citing Gillis v. Litscher, 468 F.3d 488, 493 (7th Cir. 2006)); see also Budd v. Motley,
711 F.3d 840, 842‐43 (7th Cir. 2013). The deprivation, however, must be sufficiently
serious. The condition must create a serious risk to an inmate’s health or safety or be
sufficiently prolonged so as to cause significant pain or discomfort. Thixton v. Berge, No.
05‐C‐620‐C, 2006 WL 167444 at *2 (W.D. Wis. Jan. 23, 2006) (citing Leslie v. Doyle, 125
F.3d 1132, 1137 (7th Cir. 1997) (“the Constitution does not create a cause of action for
arbitrary and purposeless acts by officials per se [citation omitted]; it prohibits the
abuse of power that effects a significant deprivation”)). Furthermore, “conditions of
confinement, even if not individually serious enough to work constitutional violations,
18

may violate the Constitution in combination when they have ‘a mutually enforcing
effect that produces the deprivation of a single, identifiable human need.’” Budd, 711
F.3d at 842‐43 (quoting Wilson v. Seiter, 501 U.S. 294, 304 (1991)).
“Deliberate indifference . . . means that the official knew that the inmate faced a
substantial risk of serious harm, and yet disregarded that risk by failing to take
reasonable measures to address it.” Townsend, 522 F.3d at 773. Establishing that an
official acted negligently does not suffice. “Instead, the inmate must show that the
official received information from which the inference could be drawn that a substantial
risk existed, and that the official actually drew the inference.” Id.

II.

Examples of Uninhabitable Conditions
A.

Pest Infestation:

“[A] prolonged pest infestation, specifically a significant infestation of
cockroaches and mice, may be considered a deprivation sufficient to constitute a due
process violation.” Sain v. Wood, 512 F.3d 886, 894 (7th Cir. 2008). “Depending on how
extensive the infestation of a prisoner’s cell is, what the infesting pests are, what odors
or bites or risk of disease they create, what particular psychological sensitivities the
prisoner was known to have . . . , and how long the infestation continues, a trier of fact
might reasonably conclude that the prisoner had been subjected to harm sufficient to
support a claim of cruel and unusual punishment.” Thomas, 697 F.3d at 614.
In Antonelli v. Sheahan, 81 F.3d 1422, 1431 (7th Cir. 1996), a Cook County Jail
inmate alleged that cockroaches were “everywhere,” “crawling on his body (along with
mice)” and “constantly awaken[ing] him,” the Seventh Circuit found that a prolonged
exposure to a significant pest infestation, if true, was serious enough to support a
constitutional violation at the initial review stage. See also Gray v. Hardy, ___ F.3d ___,
2016 WL 3457647, at * 3‐4 (7th Cir. June 24, 2016) (insect infestation along with lack of
cleaning supplies and broken window in cell could constitute unconstitutional
condition of confinement); White v. Monohan, 326 Fed. Appx. 385, 388 (7th Cir. 2009)
(unpublished) (allegations that over a five year period bugs, roaches, spiders, wasps
and bees had bitten plaintiff so often as to leave scars, wounds and sores, was sufficient
to state a claim of unconstitutional conditions of confinement). By contrast, allegations
that an inmate “saw ‘several’ cockroaches crawling in his cell” over a six‐year period
and was twice bitten did not describe a sufficiently serious condition. Sain, 512 F.3d at
894; see also Smith v. Dart, 803 F.3d 304, 312 (7th Cir. 2015) (“We do not doubt that there
are rodents and insects in the Cook County Jail, however, alleging the mere presence of
19

a laundry list of pests, without more, is not sufficient to state a constitutional claim.”);
Moore v. Monahan, No. 06 C 6088, 2009 WL 310963, at *7 (N.D. Ill. Feb. 9, 2009) (five and
a half months of sleeplessness because he stayed up at night to kill insects, but never
being sting or bitten by an insect, did not constitute an objectively serious constitutional
deprivation).
In Muithi v. Hardy, evidence that the prisoner saw between ten and fifteen birds
and mice and an occasional spider, ant, moth fly and mosquito over a four year period
did not amount to a constitutional violation. Murithi v. Hardy, No. 13 C 0599, 2016 WL
890695, at *8 (N.D. Ill. March 9, 2016). In addition, the plaintiff failed to demonstrate
any type of harm of the alleged pest infestation. Id. In contrast, in White v. Monahan, the
inmate presented evidence to allow a jury to find that “his cells were infested with
cockroaches, ants, wasps, bees, spiders, gnats, and mosquitoes” for a four‐year period.
White v. Monahan, No. 07 C 437, 2013 WL 587511, at *8 (N.D. Ill. Feb. 14, 2013).
Additionally, the inmate often awoke with red welts from insect bites and estimated he
had been treated ten times for infections related to insect bites. Id. In Barbosa v.
McCann, evidence in the record indicated the inmate could prove that insects and
cockroaches were “rampant,” that there were so many that he could sleep only a few
hours at night, and that bugs or mice crawled on him and bit him. Barbosa v. McCann,
No. 08 C 5012, 2011 WL 4062469, at *6 (N.D. Ill. Sept. 12, 2011). Although the court
ultimately determined that the extensive spraying established the absence of deliberate
indifference, the infestation problem was sufficiently serious for the first element of the
deliberate‐indifference analysis. Barbosa, 2012 WL 4471218 at *3.
Even if the pest infestation rises to a constitutional violation, evidence of proper
attempts to eliminate the pest infestation through an extermination company may
demonstrate a lack of deliberate indifference. See e.g., Sain, 512 F.3d at 895
(“exterminations . . . made monthly and in response to plaintiffʹs requests[] certainly
cannot support a claim of deliberate indifference here”); Murithi, 2016 WL 890695 at *9
(lack of deliberate indifference when an extermination company sprayed prison on a
monthly basis and warden investigated and remedies complaints of ineffectiveness of
extermination procedure/process); Barbosa, 2012 WL 4471218 at **1, 3 (evidence that
exterminator visited Stateville eight times a month and sprayed the areas outside cells,
including “in front of the cells,” “on the front of [his cell] door” and “at the bottom [of
the door],” sufficiently established the lack of deliberate indifference for summary
judgment purposes); Agnew v. Hardy, No. 11 C 0043, 2012 WL 5412109, at *5 (N.D. Ill.
Nov. 5, 2012) (“the once‐a‐month spraying by an exterminator, which Plaintiff does not
dispute, demonstrates that he cannot establish that Defendant consciously disregarded
a pest infestation”); cf. Antonelli, 81 F.3d at 1431 (only an occasional extermination, twice
in sixteen months, does not, by itself, negate a showing of deliberate indifference); Bentz
20

v. Hardy, __ Fed. Appx. __, 2016 WL 1391851, at *3 (7th Cir. April 8, 2016) (evidence of a
pest control contract that provided monthly spraying did not exculpate the defendants
because an ineffective method of pest control may be evidence of deliberate indifference
– evidence of ineffectiveness included allegations of constant infestation of cockroaches
and the fact that a broken window would allow in insects).
B.

Contaminated Water

Deliberately supplying inmates with water containing carcinogens and
contaminants can be considered cruel and unusual punishment. See Smith, 803 F.3d at
313. “But failing to provide a maximally safe environment, one completely free from
pollution or safety hazards, is not.” Carroll v. DeTella, 255 F.3d 470, 472 (7th Cir. 2001).
“Many Americans live under conditions of exposure to various contaminants. The
Eighth Amendment does not require prisons to provide prisoners with more salubrious
air, healthier food, or cleaner water than are enjoyed by substantial numbers of free
Americans.” Id.
As to claims that water is not drinkable because it comes out brown and smells
bad, such a claim does not indicate a constitutional violation. Courts have held that “an
inmate is not entitled to have running water in his cell.” Scruggs v. SinClair, No. 3:16‐
CV‐039 JD, 2016 WL 344534 at *2 (N.D. Ind. Jan. 27, 2016) (citing Williams v. Collins, No.
14 C 5275, 2015 WL 4572311 (N.D. Ill. July 29, 2015) (citing Jelinek v. Roth, No. 93‐3316,
1994 WL 447266, at *2 (7th Cir. Aug. 19, 1994)); see also Allen v. Hardy, 11 C 4147, 2012
WL 5363415 at *8 (N.D. Ill. Oct. 26, 2012); McNeal v. Ellerd, 823 F. Supp. 627, 632 (E.D.
Wisc. 1993) (although inmates have “a basic right to adequate drinking water,” a
“dysfunctional sink alone is not necessarily cruel and unusual punishment”).
C.

Adequate Ventilation

Inadequate ventilation in a jail can rise to a constitution violation. See Board v.
Farnham, 394 F.3d 469, 485‐86 (7th Cir. 2005). However, “[m]any Americans live under
conditions of exposure to various contaminants. The Eighth Amendment does not
require prisons to provide prisoners with more salubrious air, healthier food, or cleaner
water than are enjoyed by substantial numbers of free Americans.” Carroll, 255 F.3d at
472. In McNeil v. Lane, the Seventh Circuit noted that, if an inmate alleged he was
forced to stay in a cell where “friable asbestos filled the air,” he might state a claim of an
unconstitutional condition, but “[e]xposure to moderate levels of asbestos is a common
fact of contemporary life and cannot, under contemporary standards, be considered
cruel and unusual.” McNeil v. Lane, 16 F.3d 123, 125 (7th Cir. 1993).

21

Allegations of a flow of fiberglass dust into cells that caused numerous
nosebleeds and respiratory issues constitute a constitutional violation. See Farnham, 394
F.3d at 486; Cf. Dixon v. Godinez, 114 F.3d 640, 645 (7th Cir.1997) (alleged lack of proper
air ventilation did not rise to a constitutional violation where cell had a window which
opened and the cell door had a small chuckhole for ventilation); Allen v. Hardy, No. 11 C
4147, 2012 WL 5363415, at *6 (N.D. Ill. Oct. 26, 2012) (summary judgment granted for
claim of inadequate ventilation where prisoner was able to request that a window be
opened); Murthi, 2016 WL 890695 at *7 (N.D. Ill. March 9, 2016) (summary judgment
granted as to claim of inadequate ventilation based alleged dusty vent in light of access
to window for fresh air and access to fan for circulation).
D.

Temperature in Cell

As to determining whether cell temperatures amount to a constitutional violation
deprivation, various factors are considered, including: the severity of the temperature,
the duration of the high/low temperature, whether the inmate has other means to
protect himself from the temperature, and whether the inmate had to endure other
uncomfortable or harsh conditions. See Dixon, 114 F.3d at 644; see also Jones‐El v. Berge,
374 F.3d 541, 543 (7th Cir. 2004).
For example, conditions such as a temperature in his cell during the day and
night that averaged around 40 degrees Fahrenheit for a four‐day period constituted a
constitutional violation. See Dixon, 114 F.3d at 643‐44; see also, Del Raine v. Willford, 32
F.3d 1024, 1035 (7th Cir. 1994) (temperature within cell that was near temperature
outside, which was forty degrees below zero with wind chill, constituted
unconstitutional living condition); cf. Carreon v. Thomas, No. 12 C 4779, 2014 WL 51368,
at * 3 (N.D. Ill. Jan. 7, 2014) (cold cell two or three days a month for a four‐month
period, including being able to see one’s breath, did not rise a to constitutional violation
in light of the short duration and access to extra clothing and blankets); Moore, 2009 WL
310963, at *6 (routine temperatures in the summer of around 90 degrees Fahrenheit and
maintenance staff not recalling any temperatures below 60 degrees Fahrenheit in the
winter, along with extra clothing and blanket in winter and a fan in summer, did not
rise to unconstitutional condition of confinement).
In a recent reversal of summary judgment, the Seventh Circuit found that
prisoner’s exposure to temperatures below 50 degrees and sometimes more than 90
degrees, along with a broken window in northern Illinois, where temperatures in the
30s are common in March and April, could constitute unconstitutional conditions of
confinement. Bentz __ Fed. Appx. at __. Furthermore, the fact that the prisoner had
clothes and blankets did not negate the conditions, as the clothes and blankets were the
22

same amount of clothes and blankets given to other inmates and the cold was in
combination with other conditions (broken window, wet cell and mattress, and pests),
such that the conditions could be found by a jury to constitute a constitutional violation.
Id. at __.
E.

Cleaning Supplies

The complete lack of cleaning supplies and seriously adverse conditions can
demonstrate a constitutional violation. Vinning–El v. Long, 482 F.3d 923, 923–25 (7th Cir.
2007) (reversing summary judgment when prisoner was deprived of basic sanitation
items while in a cell for six days with blood and feces were smeared on the walls and
there was no running water to allow cleaning of the cell); see also Johnson v. Pelker, 891
F.2d 136, 139 (7th Cir. 1989) (allegations similar conditions and no cleaning supplies
stated a claim of unconstitutional conditions of confinement); Budd, 711 F.3d at 842 (45‐
day confinement in over‐crowded cell with broken windows, no working sink, toilet
covered in mold and spider webs, and no cleaning supplies stated unconstitutional
conditions). But where inmates regularly had cleaning items available to them, no
constitutional violation existed. Allen, 2012 WL 5363415 at *5; see also Murthi, 2016 WL
890695 at *7 (complaints of dust, dirt and bird excrement did not rise to a constitutional
violation and plaintiff was allowed to clean his cell twice per week using towels and
shampoo he purchased through commissary); Sanchez v. Walker, No. 09 C 2289, 2010 WL
5313815, at * 9 (N.D. Ill. Dec. 17, 2010). The fact that Plaintiff was not given disinfectants
as part of the cleaning supplies does not establish a constitutional violation.
Disinfectants are not one of life’s necessities and are not necessary to clean a cell.
Myrick v. Anglin, 496 Fed. Appx. 670, 676 (7th Cir. 2012) (“[a]lthough [inmate] did not
receive the specific cleaning supplies he requested, [he] does not allege that he was
unable to clean his cell with supplies available to him”); see also Sanchez, 2010 WL
5313814 at *9 (no constitutional violation existed where, in the absence of cleaning
supplies, inmate could have used available water and clothing to clean his cell).
F.

Mold

Although courts have indicated that the presence of mold can establish an
unconstitutional living condition, those courts found that the presence of mold was
sufficiently serious such that it caused physical problems. See Thomas v. Cox, 10‐CV‐997‐
GPM, 2011 WL 3205660, at *4 (S.D. Ill. July 27, 2011) (citing Munson v. Hulick, No. 10–cv–
52–JPG, 2010 WL 2698279 (S.D. Ill. July 7, 2010)); Mejia v. McCann, No. 08–C–4534, 2010
WL 653536 (N.D. Ill. Feb. 22, 2010); Moran v. Rogers, No. 07–cv–171, 2008 WL 2095532 at
*1–5 (N.D. Ind. May 15, 2008)); see also Board v. Farnham, 394 F.3d 469, 486 & n.10 (7th
Cir. 2005) (prisoners’ claim that their asthma was worsened by exposure to mold and
23

other substances was allowed to proceed); Cf. Striblin v. Buncich, No. 2:13‐CV‐22 PS,
2015 WL 4724899 at *7 (N.D. Ind. Aug. 7, 2015) (“the mere presence of some dirt, mold,
or mildew at the jail does not establish the type of severe deprivation needed to
establish a constitutional violation”). In addition, allegations that the presence of mold
caused a detainee to experience psychological harm and/or probabilistic harm may
support a claim. See Smith, 697 F.3d at 615.
G.

Plumbing Issues

Courts have held that short‐term breakdown of an inmateʹs in‐cell plumbing
where the inmate is otherwise provided with food, beverages, access to showers, and
access to toilets, does not rise to the level of a constitutional violation. See, e.g., Mims v.
Hardy, No. 11 C 6794, 2013 WL 2451149, at * 9 (N.D. Ill. June 5, 2013) (inability to get
drinking water form sink in cell did not rise to a constitutional level because plaintiff
had access to drinking water outside of cell and other beverages from commissary);
Muhammad v. Wilson, No. 05 C 743, 2006 WL 2413710, at *2–3 (N.D. Ill. Aug.16, 2006)
(broken plumbing for seven days where plaintiff was given three meals a day,
including beverages with each meal, “was an inconvenience” and “did not amount to a
constitutional violation”); Easter v. Cooper, No. 91 C 4520, 1995 WL 109343, at *3 (N.D.
Ill. March 10, 1995) (no running water for seven days constitutes an inconvenience but
does not violate the Constitution); Tesch v. County of Lake, 157 F.3d 465, 476 (7th Cir.
1998) (denial of drinking water for several days is not a constitutional violation when
inmates receive beverages with each of his three daily meals); Davis v. Biller, No. 00 C
50261, 2003 WL 22764872, at *2 (N.D. Ill. Nov.19, 2003) (inmate has a basic right to
drinking water, but a dysfunctional sink alone is not necessarily cruel and unusual
punishment).
However, long term plumbing issues may rise to a constitutional violation. See,
e.g., Mims, 2013 WL 2451149, at * 10 (disputed material facts existed regarding a lack of
access to a functioning toilet for a forty‐five day period).
H.

Noise Levels

Although periodic or occasional noises are insufficient, Lunsford v. Bennett, 17
F.3d 1574, 1580 (7th Cir. 1994) (“Subjecting a prisoner to a few hours of periodic loud
noises that merely annoy, rather than injure the prisoner does not demonstrate a
disregard for the prisonerʹs welfare.”), excessive or continuous noise, particularly where
it disrupts or prevents sleep, may violate the Constitution. See Sanders v. Sheahan, 19
F.3d 626, 628 (7th Cir. 1999) (holding that “allegation of continuous, excessive noise,
states a claim under the due process clause”); Antonelli v. Sheahan, 81 F.3d 1422, 1433
24

(7th Cir. 1996) (holding that “noise occur[ring] every night, often all night, interrupting
or preventing [] sleep” stated due process claim); Keenan v. Hall, 83 F.3d 1083, 1090 (9th
Cir. 1996) (reversing summary judgment in favor of official who subjected prisoner to
around‐the‐clock “screaming, wailing, crying, singing and yelling,” along with constant
banging noises, caused by other inmates). An official who knows of or disregards such
conditions may be liable for deliberate indifference. Townsend v. Fuchs, 522 F.3d 765, 773
(7th Cir. 2008) (official acts with deliberate indifference when they know inmate faces
substantial risk of harm but disregards that risk by not taking reasonable measures to
address it). However, allegations regarding noise often are too “localized” to subject
high‐level officials to liability. See Sanders, 198 F.3d at 629 (holding that allegations of
noise were “confined to conditions of [a] particular dormitory” and are too localized to
state a claim against sheriff). Moreover, periodic or occasional noises may not rise to
the level of a constitutional violation.
I.

Combination of Conditions:

“Conditions of confinement, even if not individually serious enough to work
constitutional violations, may violate the Constitution in combination when they have
‘a mutually enforcing effect that produces the deprivation of a single, identifiable
human need.’” Budd, 711 F.3d at 842‐43 (quoting Wilson v. Seiter, 501 U.S. 294, 304
(1991)).
Examples of finding unconstitutional conditions of confinement based on
combined conditions include: Gray, ___ F.3d ___, 2016 WL 3457647, at * 3‐4) (insect
infestation along with lack of cleaning supplies and broken window in cell could
constitute unconstitutional condition of confinement); Vinning El v. Long, 482 F.3d 923,
924 (7th Cir. 2007) (prisoner housed in cell for six days where floor was covered with
water, the sink and toilet did not function and the walls were smeared with blood and
feces, constituted unconstitutional conditions of confinement); Mims, 2013 WL 2451149,
at * 10 (finding a jury could find that conditions including a non‐functioning sink,
broken toilet, smell of feces, temperatures at or close to 100 degrees Fahrenheit, and
poor air circulation for a forty‐five day period were sufficiently serious to deprive
plaintiff of the minimal civilized measures of life’s necessities); Hicks v. Irvin, No. 06 C
0645, 2012 WL 4092621, at *5 (N.D. Ill. Sept. 17, 2012) (where there was an indefinite
number of bugs in the cell over a six‐day period, the toilet would not flush and was
backed up with feces, and plaintiff was provided only 12 to 18 ounces of water per day,
a genuine issue of material fact existed as to whether Plaintiff was denied his basic
needs).

25

Examples of finding combined conditions did not constitute a constitutional
violation include: Sain, 512 F.3d at 894 (peeling paint, foul odor in cell, lack of air
conditioning, inability to open window without letting bugs in, and seeing several
cockroaches over a six‐year period did not amount to a constitutional violation); Murthi,
2016 WL 890695 at *9 (individual claims of lack of cleaning supplies, poor ventilation,
and presence of birds, mice and other pests did not rise to constitutional violation in
isolation or in combination – while claims described unpleasant conditions, they did not
rise a deprivation of basic human necessities).

26

Claims Arising Under the Fourth Amendment (non‐prisoners).
I.

Excessive Force

The Fourth Amendment prohibits unreasonable search and seizures. An
excessive force claim alleges an unreasonable seizure (through the use of improper
force) by the governmental official in violation of the Fourth Amendment. Alicea v.
Thomas, 815 F.3d 283, 288 (7th Cir. 2016) (citing Graham v. Connor, 490 U.S. 386, 394
(1989)). The relevant question is whether the use of force was objectively reasonable in
light of the totality of the circumstances. Fitzgerald v. Santoro, 707 F.3d 725, 733 (7th Cir.
2013) (citing Graham, 490 U.S. at 396). “The test of reasonableness under the Fourth
Amendment is not capable of precise definition or mechanical application, however, its
proper application requires careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396;
Compare Flournoy v. City of Chicago, 829 F.3d 869 (7th Cir. 2016) (affirming jury verdict
finding no Fourth Amendment violation when SWAT team used flashbang grenade in
executing search warrant for home of known armed drug dealer), with Becker v. Elfreich,
821 F.3d 920, 928 (7th Cir. 2016) (finding of excessive force when police officer
continued to place knee in suspect’s back, pulled him down three stairs, and allowed a
police dog to continue to violently bite his leg after the suspect had surrendered).
The reasonableness of the force is judged from the perspective of a reasonable
officer in the defendant’s position, rather than with 20/20 hindsight. Fitzgerald, 707 F.3d
at 733 (citing Graham, 490 U.S. at 396). “An officer’s evil intentions will not make a
Fourth Amendment violation out of an objectively reasonable use of force; nor will an
officer’s good intentions make an objectively unreasonable use of force constitutional.”
Graham, 490 U.S. at 397. “Not every push or shove, even if it may later seem
unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment.” Id.
at 396. “The calculus of reasonableness must embody allowance for the fact that police
officers are often forced to make split‐second judgments—in circumstances that are
tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a
particular situation.” Id. at 397.
Summary judgment is often inappropriate in excessive force cases because the
evidence surrounding the officer’s use of force is susceptible to different interpretations,
and the parties have different recollections of what occurred. Cyrus v. Town of
Mukwonago, 624 F.3d 856, 862 (7th Cir. 2010). However, summary judgment is proper in
an excessive force case when there is no genuine issue of material fact between the
27

parties, and the moving party is entitled to judgment as a matter of law. Catlin v. City of
Wheaton, 574 F.3d 361, 367 (7th Cir. 2009). Even if there is a dispute between the parties
regarding what happened, summary judgment is permissible if one story is “blatantly
contradicted by the record, so that no reasonable jury would believe it . . . .” Scott v.
Harris, 550 U.S. 372, 380 (2007) (holding that party’s position was contradicted by
videotape of incident, requiring court to reject party’s position on what occurred and
instead rely on videotape).
In addition to the federal constitutional excessive force claim, a plaintiff may also
bring associated state law claims such as battery and intentional infliction of emotional
distress.
II.

Failure to Intervene to Stop Constitutional Violation by Another

A common allegation is that a police officer used excessive force while a second
police officer stood idly by and did nothing to stop the assault. In that situation, there is
both a claim against the officer using excessive force, and the second officer who failed
to intervene.
A governmental official cannot stand idly by when she has a reasonable
opportunity to stop the constitutional violation of another government official. See
Sanchez v. City of Chicago, 700 F.3d 919, 926 (7th Cir. 2012). A claim requires a showing
that the government official: (1) knew her fellow official was violating the constitution;
and, (2) had a realistic opportunity to intervene to stop the violation. Lewis v. Downey,
581 F.3d 467, 472 (7th Cir. 2007).
For second official to be held liable for failing to intervene, the underlying
conduct of the first official must be unlawful. Harper v. Albert, 400 F.3d 1052, 1064 (7th
Cir. 2005) (“In order for there to be a failure to intervene, it logically follows that there
must exist an underlying constitutional violation. . . .”). Additionally, as with all civil
rights based claims, a government official can only be held liable if her individual
conduct violates the Constitution. The officer cannot be held liable under a vicarious
liability theory. Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (reiterating well established
principle that there is no vicarious liability for government officials in civil rights
litigation).
Additionally, the fact that a government official knows of a constitutional
violation does not automatically mean she is liable for failing to intervene. The official
instead, must have had a realistic opportunity to intervene to stop the violation. A
governmental official cannot be held liable for failing to intervene when her
governmental position does not give her a realistic opportunity to intervene. Burks v.

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Raemisch, 555 F.3d 592, 595 (7th Cir. 2009) (“Public officials do not have a free‐floating
obligation to put things right, disregarding rules [] along the way.”).
III.

Unreasonable Restraint on Movement

A plaintiff may also allege an unlawful seizure through an unconstitutional
restraint on movement.
A.

Terry Stop

A police officer may lawfully stop a person (be it on foot or in a vehicle) if there
is proper justification to support the detention. The lowest level of necessary
justification to support a stop is reasonable and articulable suspicion under Terry v.
Ohio, 392 U.S. 1 (1967). Law enforcement may stop a person if there is reasonable
suspicion that criminal activity is afoot. D.Z. v. Buell, 796 F.3d 749, 754 (7th Cir. 2015).
Reasonable suspicion must be based on specific facts to suggest that the stopped person
has committed a crime ‐‐‐ it must be more than a mere hunch. Id. Although there must
be more than a mere hunch, the required suspicion is less than probable cause or a
preponderance of the evidence. Navarette v. California, 134 S. Ct. 1683, 1687 (2014). The
question of whether there was reasonable suspicion for the stop is viewed objectively,
looking at the totality of the circumstances. Id.
B.

False Arrest and False Imprisonment

Unlike a Terry stop where the police officer detains a person for an investigative
purpose, a false arrest claim challenges the legality of an arrest. A claim for false arrest
asserts that there was no probable cause to support the arrest. Neita v. City of Chicago,
830 F.3d 494, 497 (7th Cir. 2016). Similarly, false imprisonment alleges an unlawful
detention that is not supported by probable cause. Hawkins v. Mitchell, 756 F.3d 983, 994
(7th Cir. 2014). Thus, the existence of probable cause at the time of the arrest or
detention defeats the claims. Furthermore, even if there was false arrest or false
imprisonment, the claim ends upon the finding of valid cause to support the detention
such as an appearance before a magistrate or arraignment on charges. Wallace v. Kato,
549 U.S. 384, 389 (2007).
Probable cause is established by viewing all the facts known to the officer at the
time of the arrest and considering whether a reasonable person would believe the
arrestee has committed or is committing a crime. Hawkins, 756 F.3d at 994. An arrest
occurs when, viewing all the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave. Fox v. Hayes, 600 F.3d 819,
833 (7th Cir. 2010).

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IV.

Failure to Protect and Provide Care

“‘[W]hen the State takes a person into its custody and holds her there against her
will, the Constitution imposes upon it a corresponding duty to assume some
responsibility for her safety and general well‐being.’” Ortiz v. City of Chicago, 656 F.3d
523, 531 (7th Cir. 2011) (quoting DeShaney v. Winnebago Cnty. Dep’t of Soc. Serv., 489 U.S.
189, 199‐200 (1989)). Traditionally, detainees make two types of claims regarding their
custody: failure to provide necessities (proper food, clothing, shelter, medical care,
etc.), or failure to protect from assault from inmates or guards. The scope of the
constitutional requirement is based on the plaintiff’s status in the criminal justice
system. The period between an arrest without a warrant and probable cause hearing is
governed by the Fourth Amendment. Currie v. Chhabra, 728 F.3d 626, 629 (7th Cir.
2013). (Treatment after the probable cause hearing is discussed in later materials).
A common Fourth Amendment claim is failure to provide medical care following
an arrest. As with all Fourth Amendment claims, the analysis considers all facts and
circumstances under the objectively reasonable standard. Ortiz, 656 F.3d at 530. Facts
that inform whether the denial of medical care was objectively unreasonable include:
“(1) whether the officer has notice of the detainee’s medical needs; (2) the seriousness of
the medical need; (3) the scope of the requested treatment; and (4) police interests,
including administrative, penological, or investigatory concerns.” Id. at 530 (citing
Williams v. Rodriguez, 509 F.3d 392, 403 (7th Cir. 2007)).
V.

Unreasonable Searches
A.

Introduction

The Court considers the underlying Fourth Amendment jurisprudence when
considering the legality of a challenged search in a civil rights lawsuit. As a general
principle, the Fourth Amendment only prohibits unreasonable searches, and to answer
whether the search is reasonable one must consider whether the search intrudes on a
reasonable privacy expectation. Grady v. North Carolina, 135 S. Ct. 1368, 1371 (2015).
B.

Reduced Fourth Amendment Protections

There are certain times when the full scope of the Fourth Amendment will not
apply regarding a search. For example, a search at an international border, or
functional equivalent where a person or package first touched American soil such as an
airport or package center, need not be supported by a warrant or even by any
particularized suspicion. Rahman v. Chertoff, 530 F.3d 622, 624 (7th Cir. 2008) (citing
United States v. Flores‐Montano, 541 U.S. 149, 152‐53 (2004). Other examples include
parolees and released sex offenders, Samson v. California, 547 U.S. 843 (2006) (upholding
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California requirement that parolee agree to be subject to search or seizure by parole
officer for any time without the existence of proper cause as a condition of placement
onto parole); Belleau v. Wall, 811 F.3d 929 (7th Cir. 2016) (sex offender can be required to
wear a GPS monitoring ankle bracelet for the rest of his life following his release from
prison), the general public when being stopped at a highway sobriety checkpoint,
Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990), and students. New Jersey v.
T.L.O., 469 U.S. 325, 340‐44 (1985).
C.

Strip Searches

Detainees may face strip search upon arrest by the police, and entry into jail. The
constitutionality of a strip search is evaluated by balancing the need for the particular
search against the invasion of personal rights that the search entails. Campbell v. Miller,
499 F.3d 711, 716 (7th Cir. 2007) (citing Bell v. Wolfish, 441 U.S. 520, 559 (1979)). The
Court must consider the scope the particular intrusion, the manner in which it was
conducted, the justification for initiating it, and the place in which it is conducted.
Campbell, 499 F.3d at 716.
An arrestee entering into jail as a pretrial detainee can be subjected to a routine
visual strip search without individualized suspicion that the detainee is concealing
contraband. King v. McCarty, 781 F.3d 889, 900 (7th Cir. 2015) (per curiam) (citing
Florence v. Bd of Chosen Freeholders of the County of Burlington, 132 S. Ct. 1510, 1515, 1523
(2012)). However, a strip search cannot be conducted simply to harass, humiliate, or
inflict psychological pain. Calhoun v. DeTella, 319 F.3d 936, 939 (7th Cir. 2003).
D.

Destruction of Property during a Search

An officer can be held liable for destruction of property during an otherwise
proper search. When executing a search warrant, an officer is permitted to damage
property to conduct the search. Dalia v. United States, 441 U.S. 238, 258 (1979).
However, excessive or unnecessary destruction of property violates the Fourth
Amendment. United States v. Ramirez, 523 U.S. 65, 71 (1998). As with all Fourth
Amendment claims, the question of whether the destruction of the property is unlawful
is evaluated by considering the totality of the circumstances under an objectively
reasonableness standard. Id.
VI.

Statute of Limitations

To determine the statute of limitations for a Fourth Amendment claim against
state or local officials (under 42 U.S.C. § 1983), or against federal officials (under Bivens
v. Six Unknown Named Agents, 403 U.S. 388 (1971)), the Court looks to the statute of
limitations for personal injury actions in the state where the incident forming the basis
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of the claim occurred. King v. One Unknown Federal Corr. Officer, 201 F.3d 910, 913 (7th
Cir. 2000). Claims from Illinois and Indiana have a two‐year statute of limitations.
Wallace v. Kato, 549 U.S. 384, 387 (2007) (Illinois); King, 201 F.3d at 913 (Indiana). Claims
from Wisconsin are governed by a six‐year statute of limitations. Wudtke v. Davel, 128
F.3d 1057, 1061 (7th Cir. 1997).
An excessive force claim accrues immediately at the time of the alleged incident,
while a false arrest and false imprisonment claim accrues at the time the person is
brought before a magistrate or arraigned on charges. Wallace, 549 U.S. at 396; Neita v.
City of Chicago, 830 F.3d 494, 498 (7th Cir. 2016); Parish v. City of Elkhart, 614 F.3d 677, 681
(7th Cir. 2010). Thus, there is little to no delay in the running of the statute of
limitations after the occurrence of the challenged incident.
The rule of Heck v. Humphrey, 512 U.S. 477 (1994), rarely applies to Fourth
Amendment based claims. Hill v. Murphy, 785 F.3d 242, 245 (7th Cir. 2015). The Rule of
Heck holds that a civil right suit cannot be brought if the suit would result in a finding
that a conviction or sentence is invalid, unless the conviction has been overturned or
otherwise invalidated. 512 U.S. at 486‐87. Additionally, when a claim is controlled by
Heck, the claim does not accrue, and therefore, the statute of limitations does not begin
to run, until the conviction is set aside. Moore v. Burge, 771 F.3d 444, 446 (7th Cir. 2014).
Heck is rarely applied with Fourth Amendment claims because these claims
traditionally do not implicate a conviction or sentence. The reason is that a person can
be lawfully convicted and sentenced despite a Fourth Amendment violation. Wallace v.
City of Chicago, 440 F.3d 421, 426‐28 (7th Cir. 2006). However, it is possible to implicate
Heck based on the particular facts involved with the Fourth Amendment claim. Evans v.
Poskon, 603 F.3d 362, 364 (7th Cir. 2010) (Heck applied when conviction is for resisting
arrest); Okoro v. Callaghan, 324 F.3d 488, 489 (7th Cir. 2003) (Heck applied to claim for
theft of gems when jury rejected his claim at criminal trial that he was trying to sell
gems instead of selling drugs).
As an additional point, if a plaintiff does not know the identity of a defendant,
she may initially name the defendant as a John Doe, and also name a supervisory
official as a defendant for the purpose of conducting discovery to identify the John Doe.
Donald v. Cook County Sheriff’s Dep’t., 95 F.3d 548, 556 (7th Cir. 1996). For example, a
plaintiff may name a John Doe police officer, and also the Chief of Police as a defendant
for discovery purposes to identify the John Doe. The naming of the defendant as a John
Doe is insufficient to satisfy the statute of limitations. Instead, the plaintiff must submit
an amended complaint naming the identified officer defendant before the expiration of
the statute of limitations. Donald, 95 F.3d at 561.

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Finally, the statute of limitations can be equitably tolled. The Court will look to
the equitable tolling rules from the state where the alleged constitutional violation
occurred. Moore, 771 F.3d at 447‐48.

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