Kevin Chandler v. Ron Neal

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 24, 2024*
Decided April 24, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
No. 23-2400
KEVIN CHANDLER,
Plaintiff-Appellant,
v.
RON NEAL,
Defendant-Appellee.
Appeal from the United States District
Court for the Northen District of Indiana,
South Bend Division.
No. 3:21-CV-901-RLM
Robert L. Miller, Jr.,
Judge.
O R D E R
Kevin Chandler, an Indiana prisoner, sued the warden of his prison under
42 U.S.C. § 1983. He alleged a violation of the Eighth Amendment because the warden
was deliberately indifferent to his conditions of confinement, specifically a rodent
infestation. The district court entered summary judgment in favor of the warden. It
* 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. See 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NONPRECEDENTIAL DISPOSITION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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concluded that the warden was not deliberately indifferent because he instructed his
staff to take several measures reasonably designed to eradicate the infestation. Because
Chandler supplied no evidence to the contrary, we affirm.
We recount the facts in the light most favorable to Chandler. See Henry v. Hulett,
969 F.3d 769, 774 (7th Cir. 2020) (en banc). Chandler lived in a cell house with a rodent
infestation at Indiana’s State Prison in Michigan City for four days in April 2021. Before
Chandler spent his four days there, the prison staff had taken several steps to attempt to
eradicate the infestation. These included placing traps, using two chemical formulas to
exterminate rodents, providing cleaning supplies to prisoners to use in their cells, and
clearing each cell of trash. During one of Chandler’s four nights in the cell house, he
woke up and saw red marks on his hand and arm. Believing a rodent had bitten him
(without seeing one do so), he sought medical care, received a prescription for an
antibiotic, and was placed on observation for several hours. Chandler did not need
further treatment afterward and left the cell house after four days. Two months later,
the warden informed prison staff that he had received more complaints about the
rodent infestation and told staff to continue “aggressively” treating it.
After Chandler sued, the warden moved for summary judgment, arguing that no
evidence suggested that he disregarded the infestation in violation of Chandler’s Eighth
Amendment rights. In responding to the motion, Chandler tried to mail to the court
rodent droppings found in his possessions in storage to show that the infestation was
still present two years after the bite incident. Because the package contained hazardous
material, the prison did not mail it to the court; it mailed only Chandler’s letter
describing the droppings. The court assumed that an infestation was present, based on
Chandler’s letter, but granted the motion for summary judgment. It reasoned that the
warden was not deliberately indifferent to the rodent infestation because, both before
and after Chandler’s four days in the infested cell house, the warden endorsed several
reasonable actions to try to combat it. Chandler twice moved for reconsideration, first
because the court did not receive the rodent droppings, and second because he believed
the court had not received other filings of his. The court denied both motions,
explaining that the droppings did not affect its decision and that it had received the
other filings Chandler mentioned. After Chandler appealed, he asked the district court
to subpoena a counselor in the prison so the counselor could provide more information
about the package of rodent droppings. The district court denied the motion.
On appeal, Chandler argues that, because the warden did not eradicate the
rodents, summary judgment was improper. To survive summary judgment on his

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Eighth Amendment claim, Chandler needed to provide evidence suggesting that the
warden was deliberately indifferent to a substantial risk of harm to him from inhumane
conditions of confinement. See Farmer v. Brennan, 511 U.S. 825, 832, 839–40 (1994); Rhodes
v. Chapman, 452 U.S. 337, 347 (1981). In evaluating his claim, we will assume that the
infestation was inhumane, although some of our case law does not support Chandler.
See Sain v. Wood, 512 F.3d 886, 894 (7th Cir. 2008) (cockroach infestation leading to two
bites on a prisoner was not “objectively serious”).
The record undisputedly shows that the warden did not deliberately ignore the
rodent infestation. He reasonably had his staff set traps, apply extermination chemicals,
supply cleaning materials to prisoners, and clear trash from each cell before Chandler
arrived. When the warden later learned that the infestation persisted, he reasonably
ordered the staff to keep “aggressively” fighting it. Chandler provided no evidence
disputing these actions, to which the prison staff has sworn, or showing that they were
unreasonable. We recognize that the infestation persisted beyond Chandler’s four days
in the cell house despite these reasonable efforts, but its persistence is not by itself proof
of deliberate indifference. See id. at 895 (ruling that persistence of infestation over six
years despite monthly exterminations did not show deliberate indifference).
Chandler offers two responses, but they are unavailing. First, in his reply brief on
appeal, he argues that he created factual disputes that should have precluded summary
judgment. But he did not identify these in his opening brief, so his argument is waived.
See F ED. R. A PP . P. 28(a)(8); Yasinskyy v. Holder, 724 F.3d 983, 989 (7th Cir. 2013) (“We
will not entertain … undeveloped legal arguments … .”). In any case, the facts he
highlights in his reply brief were either not genuinely disputed (for example, he says
prisoners were given germicide, not rodent poison, to clean their cells, but the warden
agreed with that) or were not material (for example, he disputes that the prisoners were
responsible for trash buildup that encouraged the infestation). See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986) (“Factual disputes that are irrelevant or unnecessary
will not be counted.”). Second, Chandler urges us to follow Simms v. Hardesty, 303 F.
Supp. 2d 656 (D. Md. 2003). But that case concerns an excessive-force claim that has
nothing to do with a pest infestation.
Finally, Chandler challenges the denial of his post-judgment motions. We review
the court’s denial of Chandler’s motion to reconsider for abuse of discretion.
See Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 953 (7th Cir. 2013). He argues that the
district court overlooked his physical evidence of the rodent droppings. Though the
court did not receive that evidence, it was irrelevant: The district court assumed that

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droppings were present in his personal possessions, just as Chandler asserted, and
decided, correctly, that because the warden had not been ignoring the problem, the
presence of droppings did not create liability. Chandler also contests his post-judgment
(and post-appeal) request to subpoena his counselor. But the district court correctly
stated it did not have jurisdiction to grant the motion. Chandler wanted the counselor
to testify to the existence of the rodent infestation. Because that was an issue
encompassed in his notice of appeal, which he filed before he requested the subpoena,
the district court could not grant the request. See Griggs v. Provident Consumer Disc. Co.,
459 U.S. 56, 58 (1982).
We have considered Chandler’s remaining arguments, but none has merit.
AFFIRMED

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