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In Suit Over Moldy Cells Causing Fungal Infection, Illinois Warden Denied Summary Judgment Wins Anyway

by Matt Clarke

On May 19, 2023, the federal court for the Southern District of Illinois denied a state prison warden’s motion for summary judgment in a federal civil rights lawsuit over cell mold that caused a prisoner to suffer an infection and pneumonia. But when the pro se prisoner failed to establish that the nurse who blamed the mold for his illness was an expert witness, the Court then reconsidered and granted the warden summary judgment after all on September 25, 2023.

According to court documents, the cell at Shawnee Correctional Center where state prisoner Robert Simmons was kept 23 hours a day was “covered with mold.” He made housing change requests and talked to maintenance workers about the problem, but nothing was done. Meanwhile he developed a persistent cough.

Several times, Simmons was seen by Nurse Peek from the medical department about his cough and difficulty breathing. She told him the problems were caused by exposure to the mold and would not go away so long as he was continuously exposed to mold spores. This prompted Simmons to file a grievance about his cell conditions and a second grievance a few days later.

Warden Lu Walker denied emergency review of the grievances a week later. Two days after that denial, Simmons became unconscious, fell off the top bunk and was transported to the hospital. There he was diagnosed with “syncope, pneumonia, head injury, and acute hypoxemic respiratory failure,” according to the complaint he later filed.

After his return from the hospital, Simmons was placed in another moldy cell. He filed another grievance that Walker again determined was not an emergency. Four months later, Simmons was diagnosed with pulmonary nodules. The next month, he was diagnosed with adeno carcinoma of the right lung, and a light growth of cryptococcus was discovered in his lungs.

Simmons filed a pro se federal civil rights complaint accusing Walker of deliberate indifference to dangerous cell conditions. She filed a motion for summary judgment. But the Court noted that a prisoner’s allegation that mold in his cell causing breathing difficulties states a claim under 42 U.S.C. § 1983, as held in Board v. Farnham, 394 F.3d 469 (7th Cir. 2005) and Shehadeh v. Cox, 2011 U.S. Dist. LEXIS 75899 (S.D. Ill.). Further, “[r]equests for relief that fall on deaf ears can be evidence of deliberate indifference,” the Court continued, citing Dixon v. Godinez, 114 F.3d 640 (7th Cir. 1997). “Simmons does not bear the burden of proving that Walker ‘acted or failed to act believing that harm actually would befall’ him,” though, since “it is sufficient to show that Walker ‘acted or filed to act despite knowledge of a substantial risk,’” the Court said, pointing to Gray v. Hardy, 826 F.3d 1000 (7th Cir. 2016).

The Court rejected Walker’s defense that she had only determined that the grievances were not emergencies, noting that “signed grievance responses are sufficient to create a triable issue of fact regarding a defendant’s knowledge,” as held in Sanville v. McCaughty, 266 F.3d 724 (7th Cir. 2001). An attempt by Walker to claim qualified immunity was also rebuffed, since at the time “it was well established that a warden can be held liable for turning a blind eye to unsanitary conditions of confinement,” the Court said. Thus the warden’s motion for summary judgment was denied. See: Simmons v. Walker, 2023 U.S. Dist. LEXIS 88473.

But three months later, Judge Staci M. Yandle agreed with Walker that Simmons’ witnesses were barred from testifying, except Nurse Peek. And since Simmons failed to disclose he was presenting her testimony as an expert witness, her opinion—that his cough was caused by the mold—was inadmissible under Federal Rule of Civil Procedure 26(a)(2).

“Because Simmons does not have a properly disclosed medical expert witness to testify regarding causation of his respiratory issues,” the Court said it agreed to reconsider Walker’s motion for summary judgment. And because “Simmons has failed to produce admissible evidence to support a necessary element of his claim, Defendant Walker is entitled to judgment as a matter of law.” See: Simmons v. Walker, 2023 U.S. Dist. LEXIS 170813 (S.D. Ill.)  

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Related legal cases

Simmons v. Walker

Simmons v. Walker