Mason v. Snell et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MICKEY MASON,
Plaintiff,
v.
JUSTIN SNELL, ZACHARY FENTON,
NATHAN MCCARTHY, ZACHARY
FITZGERALD, PHILIP ROYSTER,
MORGAN CANNON, and
JACQUELINE LASHBROOK,
Defendants.
Case No. 3:19-CV-1019-NJR
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Mickey Mason, an inmate of the Illinois Department of Corrections
(IDOC), filed this lawsuit pursuant to 42 U.S.C. § 1983. 1 He alleges that prison officials
retaliated against him for exercising his First Amendment rights and were deliberately
indifferent to conditions of confinement that violated the Eighth Amendment.
Before the Court are two motions for summary judgment. The first was filed by
Defendants Justin Snell, Zachary Fenton, Nathan McCarthy, Zachary Fitzgerald, Philip
Royster, and Jacqueline Lashbrook (collectively, the “IDOC defendants”). (Docs. 156,
157). The second was filed by Defendant Morgan Cannon (Docs. 158, 159). Mason has
filed a response in opposition to summary judgment (Doc. 168), to which both Cannon
(Doc. 169) and the IDOC defendants (Doc. 172) have replied.
1 Although he initially proceeded
pro se, the Court recruited counsel for Mason in April 2020.
(Docs. 61, 67).
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B ACKGROUND 2
At all times relevant to this action, Mason was incarcerated at Menard Correctional
Center (“Menard”) (Doc. 157, ¶ 1). On September 25, 2020, with the assistance of counsel,
Mason filed an amended complaint raising the following claims:
Count I: 	First Amendment retaliation against Defendants McCarthy,
Snell, Fenton, Lashbrook, and Fitzgerald.
Count II: 	Deliberate 	indifference 	to 	inhumane 	conditions 	of
confinement in violation of the Eighth Amendment against
Defendant Cannon.
Count III: 	Deliberate 	indifference 	to 	inhumane 	conditions 	of
confinement in violation of the Eighth Amendment against
Defendants Fitzgerald and Royster.
(Docs. 77, 104). 3
A. Count I
Mason 	claims 	in 	his 	first 	count 	that 	Defendants 	McCarthy, 	Snell, 	Fenton,
Lashbrook, and Fitzgerald—five IDOC officials then working at Menard (Doc. 157, ¶¶ 2–
7)—retaliated against him for activity protected by the First Amendment. (Doc. 77,
¶¶ 65–72). Prior to this complaint, Mason filed multiple lawsuits against Menard officials.
(See Doc. 157, ¶¶ 9, 18–20; Doc. 159-1, at 4, 10). Mason argues that these lawsuits gave rise
to the following conduct by each defendant:
2 The facts that follow are undisputed except where otherwise noted.
3 This description of the outstanding counts and defendants only includes claims that are still pending after
this Court’s disposition (Doc. 104) of previous motions for summary judgment on the issue of exhaustion
of administrative remedies (Docs. 87, 92).
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i. 	McCarthy
Prior to the events at issue, Mason had never had any interaction with Defendant
Nathan McCarthy, a correctional officer in either the internal affairs or intel unit at
Menard. (Doc. 157, ¶¶ 5, 10–11). But on November 7, 2018, McCarthy walked past
Mason’s cell twice, each time stating “you’re dead.” (Doc. 157, ¶ 10; Doc. 159-1, at 10–11).
Mason believes these statements were made in retaliation for a previous lawsuit he filed
against one of McCarthy’s coworkers in internal affairs. (Doc. 157, ¶ 11; Doc. 159-1, at 10).
ii. 	Snell
Defendant Justin Snell was a correctional sergeant at Menard. (Doc. 157, ¶ 7). Prior
to the events at issue, Snell was named as a defendant by Mason in two separate lawsuits.
Id. ¶¶ 18–20. One suit, to which Snell was joined by an amended complaint on February
26, 2018, was dismissed before he had been served. Id. ¶ 19. The other suit was filed on
October 29, 2018, and Snell indicated his receipt of the complaint by signing a waiver of
service on January 14, 2019. Id. ¶ 20.
The events giving rise to Mason’s claim against Snell happened a few weeks after
that second lawsuit was filed. On or about November 19, 2018, Snell blocked Mason’s
way to the law library. Id. ¶ 13. Mason was carrying envelopes (Doc. 159-1, at 11–12;
see Doc. 157, ¶ 13), which a Procedural Bulletin had banned from prison libraries
(Doc. 157, ¶ 12). 4 Snell told Mason he could not take his envelopes to the library and
ordered him to return to his cell. (Doc. 157, ¶ 12; Doc. 159-1, at 11; see Doc. 157-3).
4 The Procedural Bulletin forbidding envelopes in the library, issued on March 28, 2017, reads in relevant
part:
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What happened next is disputed. During his deposition, Mason testified that he
followed Snell’s orders and returned to his cell (Doc. 159-1, at 11), though perhaps not
without some “back and forth,” id. at 12. Once in his cell, Mason asked to speak with
someone higher up in the chain of command—a lieutenant or major. Id. According to
Mason, Snell’s response was to point a finger at him and say Mason had listed him as a
defendant. Id. The IDOC defendants, on the other hand, argue that Snell must not have
made the alleged remark, as he had not been served with a lawsuit at that time. (Doc. 157,
at 13–14).
It is undisputed, however, that Snell then ordered Defendant Fenton to take
Mason’s ID so that Snell could write him up for a disciplinary report, id. ¶ 15, as the
Procedural Bulletin required (Doc. 157-3). Mason was sent to segregation shortly
thereafter. 	(Doc. 	159-1, 	at 	11). 	Snell’s 	disciplinary 	report 	charged 	Mason 	with
“intimidation and threats” and “disobeying a direct order essential to safety and
security.” (Doc. 157, ¶ 16; Doc. 157-4). The adjustment committee found Mason guilty of
these 	violations, 	a 	determination 	ultimately 	approved 	by 	Defendant 	Lashbrook. 5
(Doc. 157, ¶ 17; Doc. 157-4).
Effective immediately, offenders will no longer be permitted to use . . . any . . .
type of envelope, folder, or file to transport paperwork to and from the library and/or law
library. This includes library and law library workers.
Staff are required to ensure offenders do not have any type of envelope, file, or
folder when leaving the cellhouse on a library or law library pass. Any offender attempting
such will be escorted back to their cell, and a disciplinary report will be issued for violation
of rules.
(Doc. 157-3; Doc. 157, ¶ 12).
5 Mason testified that he believes the charges were falsely made up by Snell to have him wrongfully sent
to segregation. (Doc. 159-1, at 11).
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iii. 	Fenton
Defendant correctional officer Zachary Fenton first became involved when he
followed Defendant Snell’s directions to take Mason’s ID. 6 (Doc. 157, ¶¶ 2, 15; Doc. 159-
1, at 7). When asked what retaliatory acts Fenton had taken beyond following Snell’s
order, Mason testified that he told Fenton about the conditions of his segregation cell.
(Doc. 159-1, at 12). In response to his concerns, Fenton brought Defendant Cannon to see
Mason but did nothing else to help him. 7 Id.
Though Mason testified to no other alleged retaliatory acts by Fenton, Mason
mentioned Fenton in a sworn letter to the prison administration. (Doc. 1-1, at 19–20). In
that letter, which was sent November 27, 2018, Mason stated that Fenton had walked past
his cell multiple times after taking his ID. Id. Mason again requested to speak with a
lieutenant or major. Id. at 20. Fenton then said he was going to “send [Mason’s] ass to
seg[regation] behind the door.” Id.
Fenton was never a defendant in one of Mason’s lawsuits prior to this one.
(Doc. 159-1, at 12). Fenton never mentioned any of Mason’s previous lawsuits to Mason.
Id.
6 In a sworn letter sent to the prison administration on November 27, 2018, Mason stated that he had not
yet been given back his ID after Fenton had taken it. (Doc. 1-1, at 19). At Mason’s deposition on May 8,
2023, however, he testified that his ID had been returned to him. (Doc. 159-1, at 11).
7 In their motion for summary judgment, the IDOC defendants decline to address Mason’s deposition
statements about his interactions with Fenton while in segregation. (Doc. 157, at 16 n.7). They explain that
this Court’s prior order dismissed all claims against Fenton with respect to his conduct while Mason was
in segregation. Id. (citing Doc. 104). But they are mistaken. This Court’s prior order held, in relevant part,
that “Mason exhausted his administrative remedies as to his claims in Count I against . . . Fenton, but . . .
not . . . his claims in Count II against Fenton.” (Doc. 104, at 8). Count II concerns allegations of deliberate
indifference to unconstitutional conditions of confinement in segregation, whereas Count I concerns
retaliation. (Doc. 77). Because Fenton’s allegedly retaliatory conduct is at issue in Count I, not Count II,
Mason’s claims concerning that conduct were not dismissed by this Court’s prior order.
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iv. 	Lashbrook
Jacqueline Lashbrook was the Warden at Menard during the events at issue.
(Doc. 157, ¶ 4). Mason testified in his deposition that Lashbrook retaliated against him by
failing to stop the alleged retaliation of other IDOC officials. (Doc. 159-1, at 12).
v. 	Fitzgerald
On or around November 27 or 28, 2018, Mason was transferred from segregation
to the West Cellhouse. (Doc. 159-1, at 14–15). While there, he began to experience issues 8
with the flow of water to his cell and with an intermittent smell of Mace. 9 Id. at 14–18.
Mason complained about his cell’s conditions to Zachary Fitzgerald (Doc. 157, ¶ 26;
Doc. 159-1, at 13–18), a correctional officer whom Mason had named in a previous lawsuit
(Doc. 157, ¶¶ 4, 27; Doc. 159-1, at 7, 13–14).
While it is undisputed that Mason told Fitzgerald about his water issues (Doc. 157,
¶ 26), Mason testified both (1) that he alerted Fitzgerald to the smell of Mace, and (2) that
he could not remember whether he had done so (compare Doc. 159-1, at 13, and Doc. 157,
¶ 26, with Doc. 159-1, at 18, and Doc. 157, ¶ 31). Fitzgerald did not do anything to resolve
Mason’s complaints. (Doc. 157, ¶ 26; Doc. 159-1, at 14).
Fitzgerald never spoke to Mason about the lawsuit against him. (Doc. 159-1, at 13–
14). However, the smell of Mace only appeared after Fitzgerald was assigned to the
cellhouse. Id. at 13.
8 Discussed more thoroughly in the background to Count III, infra.
9 Mace is a brand of pepper spray. What Is the Difference Between Mace and Pepper Spray?, M ACE : SELF DEFENSE
T RAINING (Feb. 16, 2022), https://www.mace.com/blogs/self-defense-training/what-is-the-difference-
between-mace-and-pepper-spray.
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B. Count II
Mason claims in his second count that he was subjected to unconstitutional
conditions while in segregation. (Doc. 77, ¶¶ 39–40, 42–43, 47–48, 53, 73–80). Defendant
Morgan Cannon, a Behavioral Health Technician at Menard, 10 was responsible for
checking in on Mason during his time in segregation and documenting and reporting any
complaints. (Doc. 159, ¶¶ 2–3; see id. ¶¶ 7–13). Mason alleges that Cannon falsified her
reports of his complaints and ignored his concerns, thus exhibiting deliberate indifference
to the unconstitutional conditions in his cell. (Doc. 77, ¶¶ 73–80; Doc. 159, ¶ 4).
Mason testified that his segregation cell was very cold and lacked heating
(E.g., Doc. 159-1, at 22, 26; see Doc. 159, ¶ 4) and that he was not given bed material,
sheets, or a blanket. (Doc. 159-1, at 26). He claimed he did not have access to toiletries
(Doc. 159, ¶ 4) like a toothbrush or “shower soap” (Doc. 159-1, at 22), and that there was
dried blood on his bed mat and cell walls. (Doc. 159-1, at 22; Doc. 159, ¶ 4). According to
Mason, these conditions caused him to suffer cold feet, a sore throat, headaches, chills, a
lack of sleep, and cold and fever symptoms. (Doc. 159-1, at 26).
Mason saw Cannon twice while in segregation. (See Doc. 1-1, at 18). What Mason
said to Cannon is disputed. He claims he complained about the conditions in his cell.
(E.g., Doc. 159-1, at 22). However, for each visit to Mason’s cell, Cannon prepared a brief
report. (Doc. 1-1, at 18). In each such report, Cannon reported the cell’s condition as
“[g]ood” and wrote that Mason had remarked “I’m good.” Id. On both dates, she
10 Cannon was at all relevant times employed by non-party Wexford Health Sources, Inc. (Doc. 159, ¶¶ 2–
3).
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indicated there was “[n]o action required.” Id. And Cannon testified that, though she did
not remember Mason or visiting his segregation cell (Doc. 159-2, at 12–13), she would
have written in her report whatever was said to her by an inmate verbatim, id. at 23. 11
C. Count III
Mason claims in his third count that he was subjected to unconstitutional
conditions while in the West Cellhouse. (Doc. 77, ¶¶ 57–64, 81–86). He alleges that his
complaints were ignored with deliberate indifference by Defendants Zachary Fitzgerald
and Philip Royster. (Doc. 77, ¶¶ 81–86).
On May 9, 2019, Mason began to experience issues with the flow of water in his
cell. (Doc. 157, ¶ 21). Mason’s cell had both a sink and a toilet, each of which was normally
connected to running water. (Doc. 159-1, at 16). Though his complaint alleges that the
cold water in his sink was turned off (Doc. 77, ¶ 58), Mason testified that he could not
remember whether his sink had any running water (Doc. 157, ¶ 23; Doc. 159-1, at 15–16).
It is undisputed that his toilet continued to function, however. (Doc. 157, ¶ 23; Doc. 159-
1, at 16). Mason was able to secure sufficient water for his washing, cooking, and drinking
needs from the neighboring inmates, who were not experiencing water issues. (Doc. 159-
1, at 16; see Doc. 157, ¶ 24).
Mason told both Fitzgerald and Royster about his issues with the flow of water in
his cell. (E.g., Doc. 159-1, at 16). Royster fixed the issue with Mason’s water on May 26,
11 While a dispute exists as to what Mason told Cannon, as well as whether Cannon’s reports were truthful,
it is undisputed that Cannon did not have the authority to resolve any of Mason’s complaints about the
cell. (Doc. 159, ¶¶ 5–12).
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2019. (Doc. 157, ¶ 25; Doc. 77, ¶ 64; Doc. 159-1, at 16 (stating in deposition testimony that
the date the water was turned back on was written in his complaint)).
During Mason’s stay in the West Cellhouse, there was an incident where he was
able to smell Mace while in his cell. (Doc. 159-1, at 17; see Doc. 157, ¶¶ 26–27, 29–32).
Mason testified that he and his neighbors all began to cough, and that he smelled it
strongest near the vent by his bed. (Doc. 159-1, at 17). He claims that this occurred more
than once, id., though he acknowledged that the smell of Mace is not atypical in the prison
(Doc. 157, ¶ 32). According to Mason, after alerting staff to the smell (Doc. 157, ¶ 31;
Doc. 159-1, at 17) and asking whether it had been sprayed in response to an altercation,
he was told there had not been one. (Doc. 159-1, at 17–18). This led him to believe that
Mace had been intentionally sprayed into the vent of his cell (though he could not identify
who might have sprayed it). (Doc. 159-1, at 17–18). As a result of the smell, Mason
testified that he experienced coughing and difficulty breathing, though he did not recall
seeking medical attention for these issues. Id. at 18
i. 	Fitzgerald
Despite having alerted “staff” in general, Mason testified both that he told
Fitzgerald about the smell of Mace and that he could not remember whether he had told
him. (Compare Doc. 159-1, at 13, and Doc. 157, ¶ 26, with Doc. 159-1, at 18, and Doc. 157,
¶ 31). Fitzgerald did not do anything to resolve Mason’s complaints. (Doc. 157, ¶ 26).
ii. 	Royster
Mason testified that he could not remember whether he had told Royster about
the smell of Mace. (Doc. 157, ¶ 31; Doc. 159-1, at 18).
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LEGAL STANDARDS
A. Summary Judgment
Summary judgment is proper only if the moving party can demonstrate, through
pleadings, depositions, answers to interrogatories, and admissions on file, together with
any affidavits, that there is no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law. FED. R. C IV. P. 56(a); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986); see also Ruffin-Thompkins v. Experian Info. Sols., Inc., 422 F.3d 603,
607 (7th Cir. 2005). “A genuine dispute over a material fact exists if ‘the evidence is such
that 	a reasonable 	jury 	could 	return 	a 	verdict’ 	for 	the 	nonmovant.” 	Machicote 	v.
Roethlisberger, 969 F.3d 822, 827 (7th Cir. 2020) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). A fact is material if it might affect the outcome of a suit under
the relevant substantive law. Ruffin-Thompkins, 422 F.3d at 607.
In assessing a summary judgment motion, the district court views the facts in the
light most favorable to, and draws all reasonable inferences in favor of, the nonmoving
party. See Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012); Delapaz v. Richardson, 634
F.3d 895, 899 (7th Cir. 2011). As the Seventh Circuit has explained, “we set forth the facts
by examining the evidence in the light reasonably most favorable to the non-moving
party, giving [him] the benefit of reasonable, favorable inferences and resolving conflicts
in the evidence in [his] favor.” Spaine v. Community Contacts, Inc., 756 F.3d 542, 544 (7th
Cir. 2014). But “[i]nferences that rely upon speculation or conjecture are insufficient.”
Armato v. Grounds, 766 F.3d 713, 719 (7th Cir. 2014).
The moving party bears the burden of establishing that no material facts are in
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genuine dispute; any doubt as to the existence of a genuine issue must be resolved against
the moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 160–61 (1970); see also Lawrence
v. Kenosha County, 391 F.3d 837, 841 (7th Cir. 2004). Once the moving party sets forth the
basis for summary judgment, the burden shifts to the nonmoving party, who must go
beyond mere allegations and offer specific facts showing that there is a genuine issue of
fact for trial. F ED. R. CIV. P. 56(e); see Celotex Corp., 477 U.S. at 322–24.
A moving party is entitled to judgment as a matter of law where the nonmoving
party “failed to make a sufficient showing on an essential element of her case with respect
to which she has the burden of proof.” Celotex Corp., 477 U.S. at 323. The party opposing
summary judgment must offer admissible evidence in support of his or her version of
events; hearsay evidence does not create a genuine issue of material fact and cannot be
considered on summary judgment. See Gunville v. Walker, 583 F.3d 979, 985 (7th Cir. 2009);
see also Prude v. Meli, 76 F.4th 648, 661 (7th Cir. 2023).
DISCUSSION
To begin, this Court must address a problem with Mason’s responsive brief. As
explained below, the brief neither complies with local rules governing the assertion of
material facts nor supports those assertions with specific citations to materials in the
record.
First, Mason’s brief failed to follow the local rules for briefs opposing summary
judgment. Under those rules, a party moving for summary judgment must file a
Statement of Material Facts (SMF) “set[ting] forth each relevant, material fact in a
separately numbered paragraph” and supporting each fact with “specific citation(s) to
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the record.” SDIL-LR 56.1(a). Parties opposing summary judgment, on the other hand,
must file a “Response to Statement of Material Facts” either admitting, disputing, or
identifying as unsupported by the record each fact or portion of a fact in the movant’s
SMF. SDIL-LR 56.1(b). Defendants complied with these rules. (Doc. 157, at 3–8; Doc. 159,
at 1–4). Mason did not. (See Doc. 168). The Court, therefore, considers the facts in
Defendants’ SMFs undisputed for the purposes of this order. SDIL-LR 56.1(g) (“All
material facts set forth in a [SMF] . . . shall be deemed admitted for purposes of summary
judgment unless specifically disputed.”); see also F ED. R. C IV. P. 56(e) (permitting courts
on summary judgment to consider facts improperly addressed by an opposing party as
undisputed).
Second, Mason failed to support his factual assertions through citations to the
record. 	Like 	Defendants’ 	briefs, 	Mason’s 	ostensibly 	cites 	to 	attached 	exhibits.
(See, e.g., Doc. 168, at 4). But Mason filed his brief without any exhibits attached. Of
Mason’s seven purported exhibits, the Court could only identify three elsewhere in the
record. 12 Where Mason’s factual assertions rely on evidence the Court could not locate
12 Mason’s brief refers to seven exhibits, which he labels A through G. He identifies Exhibit A as the
transcript of his deposition testimony (Doc. 168, at 4); Exhibit B as the transcript of Defendant Snell’s
deposition testimony, id.; Exhibit D as the transcript of Defendant McCarthy’s deposition testimony,
id. at 6; Exhibits E and F as correspondence received from IDOC, id. at 7; and Exhibit G as the transcript of
one Major Shaun Gee’s deposition testimony, id. Mason does not identify Exhibit C, id. at 5, but the Court
has deduced that Exhibit C would have contained at least some of the documents attached to Mason’s
original complaint (Doc. 1-1). At least some of purported Exhibit C, therefore, constitutes evidence in the
record. Similarly, as copies of the depositions of Mason and Snell were filed as exhibits to both motions for
summary judgment (Docs. 159-1, 159-6, 157-2), Mason’s Exhibits A and B are also in the record. But the
Court could not locate anywhere in the record transcripts of McCarthy’s or Gee’s deposition testimony.
Nor could the Court find copies of the referenced correspondence from IDOC. Mason’s Exhibits D through
G, therefore, are not part of the record reviewed on summary judgment.
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(or does not have), those assertions are unsupported within the meaning of the local rules
and were therefore disregarded. 13 SDIL-LR 56.1(f); see also F ED. R. C IV . P. 56(e)(2).
A. Count I: First Amendment retaliation by Defendants McCarthy, Snell,
Fenton, Lashbrook, and Fitzgerald
Mason 	alleges 	that 	McCarthy, 	Snell, 	Fenton, 	Lashbrook, 	and 	Fitzgerald
individually 	and 	collectively 	violated 	his 	rights 	under 	the 	First 	Amendment 	by
retaliating against him for engaging in protected speech. (Doc. 77, ¶ 70). Retaliatory
official action violates the Constitution, even if the officer would be otherwise authorized
to take that action in the absence of a retaliatory motive. See Zimmerman v. Tribble, 226
F.3d 568, 573 (7th Cir. 2000).
To prevail on this claim, Mason must establish three elements: “First, he must
show he engaged in protected First Amendment activity. Second, he must show an
adverse action was taken against him. Third, he must show his protected conduct was at
least a motivating factor of the adverse action.” Holleman v. Zatecky, 951 F.3d 873, 878
(7th Cir. 2020).
To satisfy the second element, the adverse action must be sufficiently severe under
“an objective test: whether the alleged conduct by the defendants would likely deter a
person of ordinary firmness from continuing to engage in protected activity.” Douglas v.
Reeves, 964 F.3d 643, 646 (7th Cir. 2020) (quoting Surita v. Hyde, 665 F.3d 860, 878
(7th Cir. 2011)). This is “generally a question of fact” inappropriate for resolution at
13 Relatedly, some of the factual assertions in Mason’s brief are supported only by citation to allegations in
his amended complaint. (See, e.g., Doc. 168, at 12–13). But allegations in the pleadings are not evidence for
the purpose of establishing a dispute of material fact. BPI Energy Holdings, Inc. v. IEC (Montgomery), LLC,
664 F.3d 131, 135 (7th Cir. 2011) (citations omitted). Those assertions, too, were disregarded.
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summary judgment, but it can be resolved as a matter of law “when the asserted injury
is truly minimal.” Id. at 647 (citing Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)).
The burden of proof on the third element is split between the parties. See Mays v.
Springborn, 575 F.3d 643, 650 (7th Cir. 2009). First, a plaintiff must show his protected
activity was at least a motivating factor in the retaliatory action taken against him. Id.
(citing Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009)). The burden then shifts to the
defendants to show they would have taken the action anyway, regardless of the improper
motive. Id. (citing Hasan v. U.S. Dep’t of Lab., 400 F.3d 1001, 1005–06 (7th Cir. 2005)).
The IDOC defendants begin by making a couple of arguments applicable to all
defendants on Count I. Neither is persuasive.
First, they say Mason failed to establish that he engaged in protected speech.
(Doc. 157, at 11). But the Seventh Circuit “ha[s] held that inmates have a right under the
First 	Amendment 	to 	‘seek 	administrative 	or 	judicial 	remedies 	of 	conditions 	of
confinement.’” Holleman, 951 F.3d at 878 (quoting Babcock v. White, 102 F.3d 267, 276
(7th Cir. 1996)). Mason identifies two prior lawsuits—Mason v. Orange Crush Officers,
No. 17-cv-1026, and Mason v. Freeman, No. 18-2029—as the protected speech which he
claims led to the alleged retaliation. (Doc. 168, at 5; Doc. 77, ¶¶ 22, 52, 62; see also Doc. 168,
at 4 (representing that “[t]hose two complaints, both filed in 2018, are the specific
protected speech that Mason alleges caused the IDOC Defendants to retaliate against
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him”)). This is sufficient to meet Mason’s burden on the first element of his retaliation
claim at the summary judgment stage. 14
The IDOC defendants next argue Mason cannot establish the second element as to
any defendant. (Doc. 157, at 11). After the alleged retaliation, Mason continued to engage
in protected speech by filing administrative grievances and lawsuits. (Doc. 157, ¶ 35).
This proves, according to them, that Mason cannot demonstrate he suffered an adverse
action “likely deter a person of ordinary firmness from continuing to engage in protected
activity,” because he was in fact not deterred. Surita, 665 F.3d at 878. But that is not how
objective standards work. The relevant question is not whether Mason was deterred but
whether a person of ordinary firmness would have been. As the Seventh Circuit has
explained, “a contrary rule would stymie every First Amendment retaliation suit: Only
plaintiffs who refuse to be silenced make their way to federal court.” Douglas, 964 F.3d
at 646–47 	(citing 	Van 	De 	Yacht 	v. 	City 	of 	Wausau, 	661 	F. Supp. 2d 	1026, 	1034
(W.D. Wis. 2009)). Mason’s continued exercise of his rights does not doom his suit to
vindicate them.
The 	IDOC 	defendants 	next 	raise 	several 	defendant-specific 	arguments 	for
summary judgment on Mason’s retaliation claim, addressed below.
14 The IDOC defendants also argue that Mason was required to identify, with greater specificity, which
instances of his protected speech caused which instances of retaliation. (Doc. 157, at 11). But that argument
goes to the third element (whether an alleged retaliatory act was motivated by protected speech) rather
than the first (whether protected speech occurred at all).
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i. 	McCarthy
Mason 	claims that 	Defendant 	Nathan 	McCarthy 	retaliated 	against 	him 	by
threatening him. Allegedly, on November 7, 2018, McCarthy walked past Mason’s cell
twice, each time telling him “you’re dead.” (Doc. 157, ¶ 10). Mason alleges that McCarthy
made these threats in response to a lawsuit Mason had filed against a coworker of
McCarthy’s. 15 (Doc. 157, ¶ 11; Doc. 159-1, at 10).
The IDOC defendants challenge Mason’s claim on two grounds. (Doc. 157, at 12–
13, 15). First, they argue that Mason completely failed to provide evidence that
McCarthy’s conduct was motivated by Mason’s protected speech—the third element of a
retaliation claim. Id. at 12–13. A complete failure of proof on an element of Mason’s claim
would require summary judgment in McCarthy’s favor. Celotex Corp., 477 U.S. at 322–23
(“[T]he plain language of Rule 56(c) mandates the entry of summary judgment . . . against
a party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at
trial. In such a situation, there can be ‘no genuine issue as to any material fact,’ since a
complete failure of proof concerning an essential element of the nonmoving party’s case
necessarily renders all other facts immaterial.”). Second, the IDOC defendants contend
that “mere threats are insufficient” to constitute adverse action under the second element.
(Doc. 157, at 15).
15 Mason’s complaint alleges that McCarthy was a defendant in a prior lawsuit, but Mason testified at his
deposition that it was McCarthy’s coworker who had been named (Doc. 159-1, at 10). The IDOC
defendants’ undisputed SMF reflects Mason’s testimony. (Doc. 157, ¶ 11).
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In their first argument, the IDOC defendants explain that the record lacks any
evidence that could establish McCarthy’s conduct was motivated by Mason’s lawsuits.
Id. at 13. They point out that the record only contains Mason’s speculation that McCarthy
was retaliating because Mason had named one of McCarthy’s coworkers in a lawsuit. 16
(Doc. 157, ¶ 11; Doc. 159-1, at 10). Because speculation cannot save a plaintiff from
summary judgment, it was incumbent on Mason to identify other evidence in the record
to establish that McCarthy’s actions were motivated by the lawsuits. Harney v. Speedway
SuperAmerica, LLC, 526 F.3d 1099, 1104 (7th Cir. 2008) (“It is not the duty of the court to
scour the record in search of evidence to defeat a motion for summary judgment; rather,
the nonmoving party bears the responsibility of identifying the evidence upon which he
relies.” (citing Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996))).
Mason does not just fail to identify such evidence—he fails to respond to the IDOC
defendants’ first argument at all. (See Doc. 168, at 6–8 (focusing entirely on whether
McCarthy made the threats, which goes to the second element)). A failure to respond to
16 The entirety of the relevant portion of Mason’s deposition testimony is reproduced below:
Q: Let’s start with Nathan McCarthy, why do you believe Nathan McCarthy was
retaliating against you?
A: Because I named one of his staff members that assaulted me. And they both worked for
internal affairs or intel.
Q: Do you have any evidence that any of the actions that you claim that Mr. McCarthy took
are a result of you naming one of his co-workers?
A: Repeat that?
Q: Do you have any—well, let[‘s] back up then. So you believe that he retaliated against
you for naming one of his co-workers. What actions do you allege that Mr. McCarthy took
that were acts of retaliation?
A: The threats.
Q: And what threats?
A: He walked pas[t] my cell twice and said I’m dead. Why would he say that and I never
had any interaction with him. This is just my belief, you know.
(Doc. 159-1, at 10).
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an argument on summary judgment is a waiver of that argument. E.g., Hartford
Underwriters 	Ins. 	Co. 	v. 	Worldwide 	Transp. 	Shipping 	Co., 	313 	F. Supp. 3d 	919, 	925
(N.D. Ill. 2018) (citing C & N Corp. v. Kane, 756 F.3d 1024, 1026 (7th Cir. 2014)). Mason’s
lack of response, then, is deemed an admission that there is no non-speculative evidence
in the record that indicates McCarthy was motivated by Mason’s lawsuits against the
coworker.
Because of Mason’s complete failure of proof on an essential element of his claim,
there is no genuine dispute of material fact. The Court therefore grants summary
judgment for McCarthy. 17
ii. 	Snell
Mason claims that Defendant Justin Snell retaliated against him for exercising his
First Amendment right to file lawsuits. (Doc. 77, ¶¶ 22, 29–34, 44, 61–62, 65–72). He
alleges that Snell was motivated by having been named as a defendant in two of Mason’s
prior lawsuits. See id.
Though Mason’s account of Snell’s adverse actions has seemed to shift over time, 18
the IDOC defendants do not challenge the second element of Mason’s claim. (For the
17 Because summary judgment is warranted on the third element of Mason’s claim, the Court does not reach
the IDOC defendants’ other asserted grounds for summary judgment.
18 As best the Court can discern, Mason alleges in his amended complaint that Snell retaliated against him
by:
x 	Denying his requests to speak to a lieutenant or major;
x 	Ordering Defendant Fenton to confiscate his ID card;
x 	Ordering him to be sent to segregation;
x 	Testifying against him falsely in disciplinary proceedings;
x 	Calling him a “snitch bitch” and identifying him as a “snitch” in front of other inmates;
x 	Denying him access to the law library; and
x 	Writing a false disciplinary report against him.
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purposes of this order, the Court assumes without deciding that the disciplinary report
Snell filed against Mason following the law library incident is the adverse action at issue.)
Instead, they argue Snell is entitled to summary judgment on the third element: whether
his conduct was motivated by Mason’s protected speech. (Doc. 157, at 13–14). They
support this challenge with two assertions: (1) Snell could not have been motivated by
Mason’s lawsuits against him because he was not yet aware of it; and (2) Mason would
have been disciplined regardless of Snell’s motivation because Mason had violated the
prison’s rules. Id. at 13–14.
The IDOC defendants support their first argument with reference to the docket in
Mason’s two lawsuits. Id.; see also id. ¶¶ 18–20. Snell never received service of Mason’s
first suit. Id. ¶ 19. And Snell only signed the waiver of service (indicating receipt of the
complaint) for Mason’s second suit roughly two months after the events at issue. Id. ¶ 20.
From this, the IDOC defendants reason that Snell could not have been motivated by
Mason’s protected speech, because he was unaware of it when he wrote the disciplinary
report. Id. at 13–14.
(Doc. 77, ¶¶ 31–33, 38, 51, 61, 63, 70). In his later deposition, Mason was asked what Snell did to retaliate
against him. (Doc. 159-1, at 11). He identified the following actions by Snell:
x 	Sending him to segregation; and
x 	Writing a false disciplinary report against him.
Id. Still later, Mason’s response to the motion for summary judgment states that Snell retaliated against him
by issuing a more severe disciplinary report than was required by Mason’s conduct. (Doc. 168, at 4). Mason
also seems to imply that Snell retaliated by having him sent to the West Cellhouse, which was for “high
aggression” inmates. Id. at 5–6. (This in spite of Mason’s deposition testimony that he did not know who
assigned him to the West Cellhouse. (Doc. 159-1, at 15).) In other words, the second element of Mason’s
claim against Snell has been a bit of a moving target.
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However, just because Snell had not yet been served does not mean he could not
have learned of its existence. 19 As Mason points out in his response brief (Doc. 168, at 4),
Snell testified that he could not recall when he learned about the lawsuit (Doc. 159-6,
at 35). In contrast, both a contemporaneous sworn letter to the prison administration and
Mason’s deposition testimony reflect that Snell told Mason “you listed me as a
defendant” immediately before writing the disciplinary report. (Doc. 1-1, at 19; Doc. 159-
1, at 11). Though Snell testified that he would not have said something like that, he also
acknowledged that he did not remember everything that occurred that day. (Doc. 159-6,
at 30–32).
Resolving the conflicting evidence in the record in Mason’s favor, a reasonable
jury could absolutely determine that Snell’s adverse actions were motivated at least in
part by Mason’s protected speech. There is therefore a dispute of material fact precluding
summary judgment on this issue.
Seizing upon the latter half of the third element’s burden-shifting framework, the
IDOC defendants next point to Menard’s Procedural Bulletin. (Doc. 157, at 14). Mason
does not dispute that he attempted to bring envelopes to the law library, which was
forbidden by the Bulletin. According to the Bulletin, then, Snell had to issue Mason a
disciplinary report. The IDOC defendants thus argue that Mason would have been
subjected to the adverse action regardless of Snell’s motives. Id.
19 (See Doc. 159-6, at 35 (indicating that one of Mason’s complaints against Snell had been “scanned at
Menard” on October 29, 2018—weeks before the law library incident and disciplinary report).
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This, too, is subject to a dispute of material fact, because Mason proffers evidence
that Snell would have punished him less harshly absent a retaliatory motive. Snell
charged Mason with two violations: a Code 206 for “intimidation and threats” and a
Code 215 for “disobeying a direct order essential to safety and security.” (Doc. 157, ¶ 16;
Doc. 157-4). Mason points to Snell’s deposition testimony to show that these violations
were of a higher severity than was warranted by Mason’s actual behavior. (Doc. 168, at 4;
Doc. 159-6, at 19–27).
For example, an element of Code 215 appears to be that the prisoner’s refusal to
obey orders results in the use of force by correctional officers. (Doc. 159-6, at 21–22).
However, Snell testified that no force was used during the incident and that the
disciplinary report did not reference the use of force. (Id. at 21; see also Doc. 1-1, at 15
(copy of disciplinary report)). There is a different, less severe violation code for refusing
to obey an order that does not result in the use of force: Code 313. (Doc. 159-6, at 22). Snell
could have used that charge in his disciplinary report but elected not to do so. When
viewed in the light most favorable to Mason, Snell’s decision supports an inference that
Mason was punished more harshly than he might otherwise have been but for a
retaliatory motive.
Because Mason has proffered evidence placing the second prong of the third
element into dispute, summary judgment is inappropriate.
iii. 	Fenton
The record evinces some confusion about what, exactly, Defendant Zachary
Fenton allegedly did. The IDOC defendants say the “only allegation against Defendant
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Fenton pertains to his involvement with the November 18, 201[8] incident regarding
envelopes and the law library. Defendant Fenton’s involvement in the exchange is limited
to him taking [Mason’s] ID when Defendant Snell issued the disciplinary ticket.”
(Doc. 157, at 18).
As with Snell, Mason’s account of Fenton’s actions has shifted over time. From a
laundry 	list 	of 	actions 	in 	the 	amended 	complaint 20 	(Doc. 77), 	Fenton’s 	allegedly
retaliatory conduct is whittled down by the time of Mason’s deposition to (1) his
participation in the law library incident by taking Mason’s ID and (2) leaving Mason in
the segregation cell after Mason told him about the cell’s condition. 21 (Doc. 159-1, at 11–
12).
In his response brief, Mason does not directly acknowledge or refute the IDOC
defendants’ assertion that Fenton’s only retaliatory conduct was his involvement in the
law library incident. (See Doc. 168, at 3–9). In fact, Mason never expressly discusses the
20 Mason alleges in his amended complaint that Fenton retaliated against him by:
x 	Participating in the denial of law library access;
x 	Refusing to permit Mason to speak with a lieutenant or major about library access;
x 	Threatening to send Mason to segregation (“I’m going to send your ass to segregation behind the
door.”);
x 	Promising someone would bring Mason his toiletries in segregation (while no one actually did);
x 	Conducting a strip-search of Mason in a medical holding area while female staff walked in and out
of the area;
x 	Ignoring complaints about the inhumane conditions in the segregation cell while saying “[t]hat’s
what happens when you’re a pain in the ass and file lawsuits here at Menard”;
x 	Ignoring requests to speak with a sergeant, lieutenant, or major about the conditions in his
segregation cell; and
x 	Testifying falsely against Mason in disciplinary proceedings against him.
(Doc. 77, ¶¶ 31–33, 36–37, 39, 41, 43, 51–52, 54, 70). Mason also alleges that Fenton brought him to
segregation, though Fenton allegedly explained it was on Snell’s orders and that Fenton had had nothing
to do with it. Id. at 34.
21 According to Mason’s testimony, however, Fenton did bring Defendant Cannon to see him after he
notified Fenton of the cell’s conditions. (Doc. 159-1, at 12). He just faults Fenton for failing to do more. Id.
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retaliatory nature of Fenton’s conduct. See id. He only references Fenton’s actions by way
of an argument concerning unpreserved video footage.22 Id. at 7–9. He specifically states
that unpreserved video footage “would have captured Snell and Fenton’s actions [as
written] in a sworn declaration sent to the Adjustment Committee on November 27,
2018.” Id. at 7. You could choose to read that reference to the declaration as incorporating
the declaration’s assertions into Mason’s responsive brief. If you did, you might then find
(if you squinted) that Mason had responded to the IDOC defendants’ description of
Fenton’s retaliatory actions by evidencing one more allegation: that Fenton had
threatened Mason by saying he was “going to send [Mason’s] ass to seg[regation] behind
the door.”(Doc. 1-1, at 20).
The IDOC defendants challenge Mason’s claim on three grounds. First, they argue
Mason failed to provide any evidence establishing the third element (that Fenton was
motivated by Mason’s protected speech). (Doc. 157, at 12–13). Second, they argue Fenton
was insufficiently personally involved to be held liable under 42 U.S.C. § 1983. Id. at 15–
18. And third, they argue Fenton’s adverse actions were insufficiently severe to be
retaliatory, meaning Mason cannot satisfy the second element as a matter of law. Id. at 18.
In their first argument, the IDOC defendants point to Mason’s deposition
testimony and explain that the record contains nothing beyond mere speculation to
establish that Fenton’s conduct was motivated by Mason’s lawsuits. Id. at 13.
22 Mason makes an apparent spoliation argument and asks for an adverse inference based on this
unpreserved footage. (Doc. 168, at 7–9). Because resolution of Mason’s request would not affect the
disposition of the instant motions for summary judgment, the Court declines to consider it at this time.
Mason is free to renew his argument at a later date.
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As with his claim against Defendant McCarthy, however, Mason fails entirely to
respond to the IDOC defendants’ argument. (See Doc. 168, at 3–9). He does not point to
any evidence that Fenton was motivated by his prior lawsuits, or even that Fenton was
aware of them. 23 See id. He does not respond to the IDOC defendants’ argument about
Fenton’s motivations at all. Mason’s only argument about Fenton concerns the allegedly
unpreserved video. (Doc. 168, at 7–9). Mason claims he is entitled to an adverse inference
that the unpreserved video shows Fenton taking adverse action against him—not that the
adverse action was motivated by his protected speech. Id.
Mason’s silence in the face of the IDOC defendants’ challenge is a waiver of the
argument. Fenton “is ‘entitled to a judgment as a matter of law’ because [Mason] has
failed to make a sufficient showing on an essential element of [his] case with respect to
which [he] has the burden of proof.” 24 Celotex Corp., 477 U.S. at 323.
iv. 	Lashbrook
Perhaps unsurprisingly, the allegations against Defendant Jacqueline Lashbrook
are also muddled. Mason alleges in his amended complaint that Lashbrook, Menard’s
Warden, retaliated against him by approving the results of the disciplinary proceedings
against him. (Doc. 77, ¶¶ 54, 70). But in his deposition, Mason testified that Lashbrook’s
retaliation was based on her knowledge of and inaction toward the retaliatory acts of
other Menard staff. (Doc. 159-1, at 12–13). In their SMF, the IDOC defendants characterize
23 Indeed, a review of the relevant portion of Mason’s deposition testimony reveals that he had never sued
Fenton before and that Fenton had never mentioned the previous lawsuits. (Doc. 159-1, at 12).
24 Because summary judgment is warranted on the IDOC defendants’ first ground (failure to make a
sufficient showing on the motivating factor element), the Court does not reach their second two grounds.
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Mason as alleging that Lashbrook “retaliated against him because she did not stop her
staff from retaliating against him after reviewing his grievances.” (Doc. 157, ¶ 33). Mason
does not dispute this characterization in his response. (See Doc. 168).
The IDOC defendants argue Lashbrook is entitled to summary judgment for two
reasons. First, they argue Mason failed to offer sufficient evidence of Lashbrook’s
allegedly retaliatory motivation. (Doc. 157, at 12–13). Second, they argue Mason failed to
provide any evidence that Lashbrook was sufficiently personally involved in the
allegedly retaliatory actions of other Menard staff to be liable under § 1983.25 (Doc.
157, at 15–18).
Mason does not respond to any of the IDOC defendants’ arguments about
Lashbrook. (See Doc. 168). He lists her name as one of the IDOC defendants in the
introduction a few times, id. at 1–2, but otherwise does not even mention Lashbrook or
his claim against her. Once again, Mason’s failure to respond waives the argument, and
the Court grants summary judgment for Lashbrook.
v. Fitzgerald
Mason alleges that Defendant Zachary Fitzgerald, a defendant in one of Mason’s
prior lawsuits (Doc. 159, at 13–14), retaliated against him by ignoring his complaints
about his cell in the West Cellhouse. (Doc. 77, at 60, 62, 70). Specifically, Mason’s cell
25 Only someone who causes or participates in an alleged constitutional deprivation is liable under § 1983.
See, e.g., Greeno v. Daley, 414 F.3d 645, 656-57 (7th Cir. 2005); see also Zemlick v. Burkhart, ___ F.4th ___, 2026
WL 172617, at *4 (7th Cir. Jan. 22, 2026) (“‘[S]upervisors who are merely negligent in failing to detect and
prevent subordinates’ misconduct are not’ directly liable [under § 1983] because mere negligence is not
enough. Rather, the ‘supervisors must know about the conduct and facilitate it, approve it, condone it, or
turn a blind eye for fear of what they might see.’” (quoting Jones v. City of Chicago, 856 F.2d 985, 992
(7th Cir. 1988))).
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lacked cold water and occasionally smelled of Mace; when Mason informed him, 26
Fitzgerald allegedly did nothing.
The IDOC defendants challenge Mason’s retaliation claim against Fitzgerald on
two grounds. The first is that Mason failed to supply sufficient evidence to establish that
Fitzgerald’s conduct was motivated by Mason’s protected speech. (Doc. 157, at 12–13, 19).
The second is that Mason cannot establish sufficient personal involvement for Fitzgerald
to be liable under § 1983. Id. at 19.
To support their first argument, the IDOC defendants point out that the sum total
of Mason’s evidence for retaliatory motivation is that Fitzgerald was a defendant in one
of Mason’s prior lawsuits. (Doc. 157, at 13). The leap from “Fitzgerald was a defendant”
to “Fitzgerald was retaliating against me because he was a defendant” is, according to
the IDOC defendants, pure speculation. Id. Indeed, Mason acknowledged in his
deposition that Fitzgerald never mentioned the lawsuit to him and provided no further
evidence or reasoning. (Doc. 159-1, at 13–14).
Once again, Mason does not respond to this argument. (See Doc. 168). As above,
so below. Mason’s failure to respond waives his chance to rebut the IDOC defendants’
challenge. Because he fails to provide any evidence to establish the third element of his
claim, the Court grants summary judgment for Fitzgerald. 27
26 Mason testified both that he could not remember whether he told Fitzgerald about the smell of Mace and
that he did tell him. (Compare Doc. 159-1, at 13, and Doc. 157, ¶ 26, with Doc. 159-1, at 18, and Doc. 157, ¶ 31).
Mason testified that he did tell Fitzgerald about the water, however. (Doc. 159-1, at 16).
27 Because summary judgment is warranted on the IDOC defendants’ first ground (failure to make a
sufficient showing on the motivating factor element), the Court does not reach their second ground.
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B. Count II: Deliberate indifference to inhumane conditions of confinement
in segregation by Defendant Cannon
Mason alleges he was subjected to unconstitutional conditions of confinement
while in segregation. (Doc. 77, ¶¶ 39–40, 42–43, 47–48, 53). For six of the nine days, he
alleges he was left without a towel, bedding, a toothbrush, toothpaste, soap, boxers,
shirts, shower shoes, or tissue. Id. ¶¶ 39, 47. For the entire nine days, his cell “was
extremely cold and lacking any heat” and featured “dried blood on the walls and a bed
mat stained with blood.” Id. ¶¶ 40, 79. But according to Mason’s amended complaint, not
only did Defendant Morgan Cannon ignore him when he complained, she affirmatively
lied about his concerns in her reports. Id. ¶¶ 42–43, 48.
Under the Eighth Amendment, “[p]rison officials must ensure that inmates receive
adequate food, clothing, shelter, and medical care, and must take reasonable measures to
guarantee the safety of the inmates.” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting
Hudson v. Palmer, 468 U.S. 517, 526-27 (1984)). While the Constitution does not mandate
comfortable prisons, it does not permit inhumane ones. Farmer, 511 U.S. at 832 (citing
Rhodes v. Chapman, 452 U.S. 337, 349 (1981)).
To 	establish 	a 	prima 	facie 	case 	for 	an 	Eighth 	Amendment 	conditions 	of
confinement claim, a plaintiff inmate must satisfy two elements. The inmate must “first
establish an ‘objective showing that the conditions are sufficiently serious—i.e., that they
deny the inmate “the minimal civilized measure of life’s necessities,” creating an
excessive risk to the inmate’s health and safety.’” Giles v. Godinez, 914 F.3d 1040, 1051
(7th Cir. 2019) (emphasis added) (quoting Isby v. Brown, 856 F.3d 508, 521 (7th Cir. 2017)).
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Restrictive, harsh, or uncomfortable prison conditions that are neither cruel nor unusual
are “part of the penalty that criminal offenders pay for their offenses against society.”
Rhodes, 452 U.S. at 347. A prisoner is not entitled to “the amenities, conveniences and
services of a good hotel.” Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988).
Second, the inmate must also “establish ‘a subjective showing of a defendant’s
culpable state of mind.’ . . . [T]he state of mind necessary to establish liability is deliberate
indifference to the inmate’s health or safety.” Giles, 914 F.3d at 1051 (emphasis added)
(quoting Isby, 856 F.3d at 521) (citing Estate of Novack ex rel. Turbin v. County of Wood, 226
F.3d 525, 529 (7th Cir. 2000)). “A prison official cannot be found liable under the Eighth
Amendment for denying an inmate humane conditions of confinement unless the official
knows of and disregards an excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference could be drawn that a substantial risk of
serious harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 837.
Deliberate indifference “implies at a minimum actual knowledge of impending
harm easily preventable, so that a conscious, culpable refusal to prevent the harm can be
inferred from the defendant’s failure to prevent it.” Duckworth v. Franzen, 780 F.2d 645,
653 (7th Cir. 1985). Mere “negligence or even gross negligence does not constitute
deliberate indifference.” Snipes v. DeTella, 95 F.3d 586, 590 (7th Cir. 1996). “There is no
liability under the Cruel and Unusual Punishments Clause if a prison official has
responded reasonably to a risk of harm.” Doe v. Welborn, 110 F.3d 520, 524 (7th Cir. 1997).
Cannon challenges two portions of Mason’s claim. First, she argues she is entitled
to summary judgment because Mason cannot make an objective showing that the
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conditions in his cell were sufficiently serious (the first element). (Doc. 159, at 6–12).
Second, she argues she was insufficiently personally involved to be held liable under
42 U.S.C. § 1983. Id. at 12–13.
Cannon’s first argument is not persuasive. She argues that the cold temperatures
Mason alleges are insufficiently serious as a matter of law, likening this case to Mays v.
Springborn, 575 F.3d 643 (7th Cir. 2009), where the Seventh Circuit affirmed a grant of
summary judgment against a cold-related conditions of confinement claim. (Doc. 159,
at 7). But Cannon misunderstands the law: In the Seventh Circuit, courts are to consider
five factors when evaluating a conditions of confinement claim based on extreme cold:
“(1) the severity of the cold; (2) its duration; (3) whether the prisoner has alternative
means to protect himself from the cold; (4) the adequacy of such alternatives; and
(5) whether the prisoner must endure other uncomfortable conditions in addition to the
cold.” Dace v. Smith-Vasquez, 658 F. Supp. 2d 865, 876 (S.D. Ill. 2009) (citing Dixon v.
Godinez, 114 F.3d 640, 644 (7th Cir. 1997). The Mays Court was confronted with different
facts; that it reached a different conclusion under such a fact-intensive inquiry should be
unsurprising.28
28 Specifically, Mays concerned a plaintiff upset that he was not issued enough winter gear—only “a winter
coat, boots, and a winter hat.” Mays, 575 F.3d at 646. The Seventh Circuit affirmed the grant of summary
judgment against him. Id. at 651. It reasoned that, in the absence of any evidence that Mays “was forced to
be in the cold for long periods of time or that he suffered anything more than the usual discomforts of
winter,” the evidence Mays did provide (testimony that “because he was never issued certain clothing
items, he suffered from hurt ears and numb hands, felt frostbite, and caught colds”) was not enough.
Id. at 648. Here, where Mason has testified that he experienced similar symptoms after being confined in
an extremely cold segregation cell without any bedding for days on end (Doc. 159-1, at 22, 26), the
evidentiary situation is completely different than in Mays.
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So, if Mason’s allegations are not categorically insufficient, the evidence in the
record must be assessed. Mason provided evidence, in his testimony, that his cell was
extremely cold and that he was not given any sheets or blankets for his bed. (Doc. 159-1,
at 22, 26). He testified that these conditions caused him physical harm. Id. at 26.
In response, Cannon does not point to any evidence about the conditions of
Mason’s cell. Instead, she merely insists that Mason’s lack of “objective data” (such as
“temperature logs”) is fatal to his claim. (Doc. 159, at 7–8; Doc. 169, at 3). But Mason does
not have to provide “objective data.” 29 See F ED. R. C IV. P. 56(c)(1) (factual assertions on
summary judgment to be supported by “materials in the record, including depositions”).
Cannon points to no opinion of the Seventh Circuit establishing a heightened evidentiary
burden at summary judgment for plaintiffs alleging extreme cold.
While declining to say it could never be resolved on summary judgment, the
Seventh Circuit has emphasized that “the question of whether the severity of the cold, in
combination with the length of time which the inmate had to endure it, was sufficient to
violate the Eighth Amendment is one which will often be peculiarly appropriate for
resolution by the trier of facts.” Dixon, 114 F.3d at 643. Here, where Mason has pointed to
materials in the record to support his allegations of extreme cold (and where Cannon has
29 Cannon cites Dace v. Smith-Vasquez, which does not impose such a requirement. 658 F. Supp. 2d at 876–
81. On different facts and confronted with a completely different evidentiary record, the Dace Court said
only that “the lack of objective data on the actual temperatures in his cell undermines the meaningfulness
of [his] claims.” Id. at 879; see also Sanford v. Madison Cnty. Jail, No. 14-cv-566, 2017 WL 894474, at *5
(S.D. Ill. Mar. 7, 2017) (distinguishing Dace because the plaintiff there had winter clothing and bedding to
keep him warm).
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failed to demonstrate those materials’ inadequacy), the question must go to the trier of
fact.
Cannon’s second challenge to Mason’s claim is no more persuasive than her first.
While she correctly notes that, under § 1983, “[a] defendant ‘cannot be held liable for
failing to do something he had no authority to do’” (Doc. 159, at 12 (quoting Hunter v.
Mueske, 73 F.4th 561, 566 (7th Cir. 2023))), Cannon appears to misread Mason’s claim
against her. She points to the undisputed fact that she did not have the authority to rectify
any of Mason’s complaints about his segregation cell. (Doc. 159, ¶¶ 5–12). But Mason isn’t
suing her for failing to rectify the issues with his cell—he’s suing her for failing to report
them. (Doc. 77, ¶¶ 42–43, 48; Doc. 168, at 14).
Though a defendant cannot be held liable for failing to do something she had no
authority to do, she can be held liable for failing to do something she did have the
authority to do. See, e.g., Burks v. Raemisch, 555 F.3d 592, 595 (7th Cir. 2009) (using “a
complaint examiner [who] routinely sent each grievance to the shredder without reading
it” as an example of a defendant who could be liable for deliberate indifference under
§ 1983). Here, Cannon’s own undisputed SMF establishes that she had not only the
authority but the “responsibility” to report issues like those Mason claims to have
experienced. 30 (Doc. 159, ¶¶ 7–12).
30 Specifically, Cannon writes that:
x 	“Cannon was not responsible for cleaning cells; her only responsibility was to document the
complaints about the cell and share the complaint with an IDOC staff member. Same was true for
blood stains.” (Doc. 159, ¶ 7).
x 	“[H]er authority only extends to documenting and reporting his complaints.” Id. ¶ 8.
x 	“Cannon’s only responsibility was to document the complaints about the temperature and orally
share the complaint with an IDOC staff member.” Id. ¶ 9.
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Mason claims Cannon failed to report his complaints about the conditions in his
segregation cell and even actively falsified her reports. (Doc. 77, ¶¶ 73–80; Doc. 159, ¶ 4).
In other words, he alleges she willfully turned a blind eye to the conditions he faced and
refused to relay his concerns to anyone who could have rectified his complaints. And
Mason has put evidence in the record to support this claim. (Compare Doc. 159-1, at 22
(Mason testifying that he told Cannon about the conditions in his cell), with Doc. 1-1, at 18
(a copy of Cannon’s report, on which she wrote his cell conditions were good and that he
said to her “I’m good”), and Doc. 159-2, at 23 (Cannon testifying, upon viewing a copy of
her report, that she would not have falsified it and that the phrase “I’m good” is a direct
quote from Mason)). Cannon therefore cannot establish that she is entitled to judgment
as a matter of law on the personal involvement requirement.
Because neither of Cannon’s arguments persuades the Court that there is no
dispute of material fact, her motion for summary judgment is denied. 31
C. Count 	III: 	Deliberate 	indifference 	to 	inhumane 	conditions 	of
confinement 	in 	the 	West 	Cellhouse 	by 	Defendants 	Fitzgerald 	and
Royster
Mason alleges in his third count that he was deprived of cold water and subjected
to the smell of Mace in the West Cellhouse. (Doc. 77, ¶¶ 57–64, 81–86). He asserts that
x 	“Cannon did not control access to personal items while in segregation; her only responsibility was
to document an individual in custody’s complaints about personal items and share the complaint
with an IDOC staff member.” Id. ¶ 11; see also id. ¶ 12 (same verbatim).
31 Cannon argues in her reply that Mason “waived any argument against Cannon’s motion for summary
judgment because he did not address any of the arguments” in her motion outside of “one single paragraph
of [his] fifteen page brief.” (Doc. 169, at 2 (citing Doc. 168, at 14)). This is incorrect. Mason’s argument
entitled “Mason was detained in objectively adverse conditions,” which spans three pages, is also clearly
responding to Cannon’s argument. (Doc. 168, at 10–12). Moreover, Mason’s argument in the paragraph
Cannon cites points to record evidence that is clearly responsive to Cannon’s claimed lack of personal
involvement. In other words, Mason did not waive his arguments in response to Cannon’s motion.
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these conditions were unconstitutionally inhumane. (Doc. 168, at 12–13). He further
alleges Defendants Zachary Fitzgerald and Philip Royster were deliberately indifferent
to those conditions by ignoring his complaints (Doc. 77, ¶¶ 81–86).
The IDOC defendants challenge the first element of Mason’s conditions of
confinement claim. (Doc. 157, at 19–22). They argue Mason has failed to provide enough
evidence to create a dispute of fact about whether his conditions of confinement were
sufficiently severe. The Court agrees.
Mason’s evidence shows he had difficulties with the water in his cell for 17 days.
(Doc. 157, ¶¶ 21, 25). But Mason’s evidence is inconclusive as to the nature of these
difficulties. (See Doc. 159-1, at 15–16). In his complaint, Mason alleged that the cold water
in his cell sink stopped running. (Doc. 77, ¶ 58). But he testified that he could not
remember whether his hot water still worked or whether his sink had stopped working
entirely. 	(Doc. 157, 	¶ 23; 	Doc. 159-1, 	at 15–16). 	Regardless, 	it 	is 	undisputed 	that
(1) Mason’s toilet still functioned and (2) he was able to get water from inmates in the
neighboring cells for all his washing, cooking, and drinking needs. 32 (Doc. 157, ¶¶ 23–24;
Doc. 159-1, at 16).
In other words, the undisputed evidence establishes only that Mason was
inconvenienced in using water. It does not establish that he was deprived of water for
32 From Mason’s deposition:
Q: Was there anything that you weren’t able to do because you didn’t have water?
A: The normal stuff that we do every day. Like when I want to cook, I got to get everything—I got
to get the water from next door.
Q: Were you able to get that water though?
A: From next door, yes.
(Doc. 159-1, at 16).
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any necessary purpose. Though the first element of a conditions of confinement claim is
generally fact intensive, no reasonable jury could conclude that this inconvenience denied
Mason the “minimal civilized measure of life’s necessities” or “create[ed] an excessive
risk to [his] health and safety.” 33 Giles, 914 F.3d at 1051 (quoting Isby, 856 F.3d at 521).
A similar conclusion is compelled with respect to the smell of Mace. Mason does
not offer any evidence to suggest that the smell, alone or in combination with his lack of
cold water, was anything more than an inconvenience or irritation. His only response to
the IDOC defendants’ challenge is to cite two inapplicable cases from the “excessive
force” context. 34 Even viewed in the light most favorable to Mason, no reasonable jury
could find that Mason had experienced objectively inhumane conditions on these facts.
Mason has failed to provide sufficient evidence to establish that the conditions in
the West Cellhouse denied him the minimal civilized measure of life’s necessities.
33 Mason offers two cases to support his position that the difficulties with his sink amounted to an Eighth
Amendment violation: (1) Vinning-El v. Long, 482 F.3d 923, 924 (7th Cir. 2007) (per curiam) (plaintiff was
kept for six days without any mattress, sheets, toilet paper, towels, shoes, soap, or toothpaste in a cell where
the “floor . . . was covered with water, the sink and toilet did not work, and the walls were smeared with
blood and feces”), which Mason cites for the propositions that “a non-functional sink may violate the
Eighth Amendment”; and (2) Owens v. Lamb, No. 17-cv-997, 2020 WL 1492690 (S.D. Ill. Mar. 27, 2020)
(plaintiff was kept for months in a cell where a leak frequently caused him to be exposed to contaminated
water), which Mason cites for the proposition that “unhygienic conditions over a longer period of time
raise serious constitutional concerns.” (Doc. 168, at 13). Leaving aside the fact that the plaintiffs in both of
these cases faced potentially very serious health risks, as opposed to a mere lack of access to cold water,
Mason’s own testimony establishes that he was not actually deprived of anything. (Doc. 159-1, at 16). It is
undisputed that he was able to get all the water he needed—he just had to get it from other inmates’ cells.
(Doc. 157, ¶¶ 23–24). Mason points to no evidence to show he suffered anything but inconvenience and
musters no caselaw to show the Constitution was violated.
34 Even if those cases, Kuykendall v. Kennell, No. 14-1477, 2015 WL 1887507 (C.D. Ill. Apr. 24, 2015), and Soto
v. Dickey, 744 F.2d 1260 (7th Cir. 1984), were applicable here, Mason himself correctly points out that they
require a plaintiff to show “prison officials use[d] chemical agents for the sole purpose of punishment or
the infliction of pain.” (Doc. 168, at 13). Mason does not make such a showing. (See Doc. 157, ¶ 30).
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Because Mason bears the burden of proof on that element, Fitzgerald and Royster are
entitled to judgment as a matter of law on Count III.
D. Qualified Immunity
The IDOC defendants argue additionally that they are entitled to summary
judgment on qualified immunity. 35 (Doc. 157, at 22–25). Qualified immunity shields
“government officials from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). The doctrine “balances
two important interests—the need to hold public officials accountable when they exercise
power irresponsibly and the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.” Id. It protects an official from suit
“when 	she 	makes 	a 	decision 	that, 	even 	if 	constitutionally 	deficient, 	reasonably
misapprehends the law governing the circumstances she confronted.” Brosseau v. Haugen,
543 U.S. 194, 198 (2004).
The qualified immunity test has two prongs: (1) whether the facts shown, taken in
the light most favorable to the party asserting the injury, demonstrate that the officer’s
conduct violated a constitutional right, and (2) whether the right at issue was clearly
established at the time of the alleged misconduct. See Pearson, 555 U.S. at 232; see also
Brosseau, 543 U.S. at 197; Wilson v. Layne, 526 U.S. 603, 609 (1999). To be “‘clearly
established’ a right must be defined so clearly that every reasonable official would have
35 Defendant Cannon does not assert a qualified immunity defense. (See Doc. 159).
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understood that what he was doing violated that right.” Dibble v. Quinn, 793 F.3d 803, 808
(7th Cir. 2015) (citing Reichle v. Howards, 566 U.S. 658, 664 (2012)). There need not be a case
directly on point, but “existing precedent must have placed the statutory or constitutional
question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). The right must be
established “not as a broad general proposition.” Reichle, 566 U.S. at 664. Instead, it must
be “particularized” such that the “contours” of it are clear to a reasonable official. Id.
i. 	First Amendment retaliation (Count I)
As discussed above, the Court found in favor of Defendants Nathan McCarthy,
Zachary Fenton, Jacqueline Lashbrook, and Zachary Fitzgerald on Count I because the
facts, when taken in the light most favorable to Mason, do not demonstrate that their
conduct violated a constitutional right. They are therefore entitled to qualified immunity
on that count.
Defendant Justin Snell, however, is not entitled to qualified immunity. Viewed in
the light most favorable to Mason, it is not clear that Snell did not violate his
constitutional rights. And a prisoner’s right to file lawsuits without fear of retaliation was
clearly established at the time of the events alleged in Mason’s amended complaint. E.g.,
Babcock, 102 F.3d at 276; Holleman, 951 F.3d at 877–78.
ii. 	Deliberate indifference to inhumane conditions of confinement (Count III)
As discussed above, the Court found in favor of Defendants Zachary Fitzgerald
and Philip Royster on Count III because the facts, when taken in the light most favorable
to Mason, do not demonstrate that their conduct violated a constitutional right.
Therefore, they are entitled to qualified immunity on that count.
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CONCLUSION
For these reasons, the Court GRANTS in part and DENIES in part the motion for
summary judgment filed by Defendants Justin Snell, Zachary Fenton, Nathan McCarthy,
Zachary Fitzgerald, Philip Royster, and Jacqueline Lashbrook (Doc. 156) and DENIES
Defendant Morgan Cannon’s motion for summary judgment (Doc. 158). At the close of
the case, the Clerk of Court shall enter judgment:
x 	On Count I, in favor of Defendants Nathan McCarthy, Zachary
Fenton, Jacqueline Lashbrook, and Zachary Fitzgerald, and against
Plaintiff Mickey Mason; and
x 	On Count III, in favor of Defendants Zachary Fitzgerald and Philip
Royster and against Plaintiff Mickey Mason.
The following claims remain pending:
x 	Count I against Defendant Justin Snell; and
x 	Count II against Defendant Morgan Cannon.
The Court will set a status conference by separate order for the purpose of
discussing a potential referral of this case to mediation and setting a firm trial date.
IT IS SO ORDERED.
DATED: February 13, 2026
____________________________
NANCY J. ROSENSTENGEL
United States District Judge
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