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Seventh Circuit: Rodent Infestation Claims Survive Summary Judgment

The Seventh Circuit Court of Appeals held that an Illinois prisoner’s claims regarding a rodent infestation were prematurely dismissed because he presented triable issues of fact for a jury.

Illinois state prisoner Marcos Gray was confined at the Stateville Correctional Center for 15 years, in apparently deplorable conditions.

“He sees cockroaches at least every other day, and sometimes as often as every few minutes. Birds fly and nest all over the prison, leaving their droppings on the floors and wall,” he alleged in his federal lawsuit, writing in the third person. “Mice are often in Gray’s cell, where they eat his food. The cell house is also infested with ants, spiders, flies, gnats, moths, and mosquitoes.”

The birds and other pests entered through broken windows and holes in the walls that prison officials had not bothered to repair, according to Gray.

Prison officials also denied prisoners adequate cleaning supplies. “Gray receives only one towel, which is replaced every eight months; he also gets some watered-down disinfectant spray. He does not have access to mops, brooms, or buckets, and he is not permitted to store chemicals such as soap in his cell,” he wrote. “He is allowed to purchase soap or detergent at the commissary, but because he may not store it, he must use it all at once.”

Gray had not been bitten or directly harmed by any type of pest or rodent. He argued, however, that the pest dander aggravated his asthma and he developed skin rashes within eight months of his arrival at Stateville.

Gray was far from alone. On February 11, 2014, a federal class-action suit was certified in Dobbey v. Weilding, U.S.D.C. (N.D. Ill.), Case No. 13-cv-01068, alleging infestations of birds, mice and cockroaches, as well as a failure to provide cleaning supplies at Stateville. That suit, which remains pending, seeks only injunctive relief. Gray is a member of the Dobbey class and may not opt-out, as it was certified under Federal Rule of Civil Procedure 23(b)(2).

The district court granted summary judgment to the defendant prison officials on Gray’s individual damage claims, finding that none of the conditions he described, standing alone, were so bad as to violate the Eighth Amendment. He appealed.

“Reading the record in the light most favorable to Gray,” the Seventh Circuit reversed. Gray “has shown enough to avoid summary judgment on his claim that the myriad infestations and his lack of access to adequate cleaning supplies, taken together, deprived him of the basic human need of rudimentary sanitation in violation of the Eighth Amendment,” the appellate court held.

“Hygienic supplies sufficient to meet basic needs are constitutionally required,” the Court of Appeals added. “It is not enough for the prison to ‘allow’ inmates to purchase them.”

Recalling “Winston’s unreasoning fear of rats in Nineteen Eighty-Four, a fear exploited by his torturers to break his spirit without actually touching him,” the Seventh Circuit acknowledged that the “potential psychological harm from living in a small cell infested with mice and cockroaches is pretty obvious,” citing Thomas v. Illinois, 697 F.3d 612 (7th Cir. 2012).

Gray’s summary judgment pleadings “present triable issues of fact for a jury, which must determine the degree of both physical and psychological harm he suffered as a result of the infestation and dirt,” the appellate court concluded. “If the jury finds that Gray suffered only psychological harm, he will be limited to nominal and punitive damages.”

Gray was represented on appeal by appointed counsel Thomas Shriner. See: Gray v. Hardy, 826 F.3d 1000 (7th Cir. 2016).

The case remains pending on remand, where Gray moved on August 7, 2017 to tax the appellate costs to the defendants. Attorney Thomas B. Underwood was appointed by the district court to represent Gray after the appellate ruling. 

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Related legal case

Gray v. Hardy