Jackie W. McGee v. Billy Pontow

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted October 24, 2023*
Decided November 8, 2023
Before
DAVID F. HAMILTON, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 23-1487
JACKIE W. MCGEE,
Plaintiff-Appellant,
v.
BILLY PONTOW, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Eastern District of Wisconsin.
No. 21-cv-1184-bhl
Brett H. Ludwig,
Judge.
O R D E R
Jackie McGee, a Wisconsin prisoner who worked as a janitor at the facility,
maintains that prison officials violated his constitutional rights in two ways. First, he
says, they ignored his risk of contracting COVID-19 in violation of his Eighth
Amendment rights by having him briefly encounter COVID-positive prisoners twice
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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No. 23-1487 Page 2
daily with only a face mask, gloves, and sanitation supplies to protect himself. Second,
he contends, they violated his equal protection rights by not giving him the same
protective equipment they gave to other janitors who lived and continuously worked
among quarantined prisoners. See 42 U.S.C. § 1983. The district court granted the
defendants’ motion for summary judgment. Because no evidence suggests that the
defendants acted with deliberate indifference to McGee’s potential exposure to COVID,
and rational grounds supported their decision to give the other workers more
equipment, we affirm.
We construe all facts in the light most favorable to McGee, the nonmoving party.
Estate of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017). This appeal centers on
events in late 2020, during the COVID-19 pandemic, when McGee was incarcerated at
Fox Lake Correctional Institution. In November 2020, McGee lived in wing D of his
housing unit. The prison used the A and B wings to quarantine prisoners who had
recently arrived, the C wing to isolate prisoners who tested positive for COVID, and the
D wing to house prisoners who, like McGee, tested negative for COVID. The prison’s
security director directed that janitors “continue to perform normal job duties,” that
they “don PPE [personal protective equipment] as appropriate,” and that the housing
wings operate “independent of each other.”
McGee worked as a janitor. Part of his job entailed going to the C wing twice
daily for about five to seven minutes each time to fill bottles and buckets with cleaning
chemicals to leave for the prisoners there. He did not clean the C wing. When he went
to fill bottles there, he wore a cloth face mask (which he now says was loose) and had
access to gloves and personal sanitation supplies. During his five to seven minute visits,
he walked through the dayroom, where prisoners who had tested positive for COVID
were often unmasked and sometimes spoke to him. Two janitors who both lived and
worked on the quarantined A and B wings received N95 masks and face shields. Their
work involved bringing meals and ice to prisoners and cleaning those wings.
In late November 2020, McGee told a supervising officer that he wanted to quit
going to the C wing. He said he was fearful of contracting COVID because of his age
(60) and wanted the same protective equipment that janitors on the A and B wings
received. The officer declined McGee’s request for additional equipment and warned
McGee that, under the prison’s rules, if he quit his job, he could not work for at least 90
days and would lose other privileges. McGee did not quit and continued to fill bottles
in the C wing. In early December, McGee (and other prisoners in the D wing) tested

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No. 23-1487 Page 3
positive for COVID and were transferred to the C wing. He says that he experiences
long-term health effects from COVID.
As mentioned, McGee raises two claims in this suit. First, he contends that prison
officials deliberately ignored the risk that he would contract COVID, in violation of his
Eighth Amendment rights. Second, he argues that they treated him differently from
janitors who lived and worked in the A and B wings by not giving him the same
protective equipment supplied to them, in violation of his equal protection rights. The
district court entered summary judgment for the defendants on both claims. It noted
that the defendants were not deliberately indifferent to McGee’s risk of COVID, and
that they had a rational basis for giving janitors in the A and B wings extra equipment
because those janitors potentially had continuous exposure to the virus.
On appeal, McGee contests both rulings. He first argues that the defendants
ignored the COVID risk he faced, particularly when his supervisor warned him not to
quit his job. Second, he contends that they irrationally treated him differently from
other janitors. In his view, the C wing was more dangerous than the A or B wings
because the C wing housed prisoners who had tested positive for the virus, whereas
those in the A or B wings were merely quarantined with an unknown COVID status.
The district court correctly ruled on McGee’s first claim that no reasonable jury
could find that the defendants deliberately ignored McGee’s risk of contracting COVID.
To prevail on this claim, McGee had to offer evidence that they (1) exposed him to an
excessive risk to his health and (2) knew about but disregarded that risk. See Williams v.
Shah, 927 F.3d 476, 479–80 (7th Cir. 2019) (citing Farmer v. Brennan, 511 U.S. 825, 828–34
(1994)). McGee did not furnish evidence of either element. To begin, he cites no
evidence suggesting that his exposure to prisoners in the C wing—twice a day, for only
five to seven minutes at a time, while masked, gloved, and able to clean himself—put
him at undue risk of contracting COVID (or that it caused his infection). In addition,
McGee did not produce evidence that the defendants knew that his mask, gloves, and
sanitation options during his brief visits were insufficient to mitigate his risk of
exposure. Likewise, the supervisor’s warning to McGee about the prison’s policy that
limits privileges to any prisoner who quits a job does not show that he ignored McGee’s
risk of contracting COVID. Even though the supervisor knew McGee’s age, nothing
suggests that the supervisor knew that McGee’s equipment and brief exposure
inadequately abated the risk of COVID to someone McGee’s age.
McGee replies that the defendants must have known—from the prison’s
directive that they operate each wing “independent of each other”—that COVID was

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highly infectious. We may assume so much. Even so, the directive does not tell the
defendants that masks, gloves, and sanitation fail to mitigate that risk of infection
during brief visits to the C wing twice a day. And insofar as McGee contends that the
defendants violated that directive by assigning him to work on the C wing, this alone is
not sufficient to constitute a constitutional violation. See Estate of Simpson, 863 F.3d at
746.
We also agree with the district court’s ruling on McGee’s equal protection claim,
which McGee formulates as a “class of one” claim, contending that the defendants
should not have treated him differently from other janitors. To survive summary
judgment on this claim, McGee must present evidence from which a reasonable jury
could conclude that the defendants irrationally treated him differently from other
similarly situated prisoners. See Srail v. Village of Lisle, 588 F.3d 940, 943–44 (7th Cir.
2009). But no reasonable jury could find that the difference in equipment provided to
McGee, who briefly visited the C wing twice daily, and the other janitors, who lived
and worked continuously in the A and B wings, lacked a rational basis. For starters, the
janitors who lived and worked in the A and B wings had ongoing contact with
potentially COVID-positive prisoners all day, every day; McGee, in contrast, entered
the C wing just twice daily for five to seven minutes each time. Also, these other janitors
interacted with potentially COVID-positive prisoners more closely than McGee did—
they delivered meals and ice to prisoners and sanitized the entire A and B wings.
McGee’s job did not require him to interact with the COVID-positive prisoners in the C
wing, and he did not have to clean any parts of that wing.
AFFIRMED

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