Tapanga Hardeman v. David Wathen , 933 F.3d 816 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2672
TAPANGA HARDEMAN, et al.,
Plaintiffs-Appellees,
v.
SHERIFF MARK CURRAN, et al.,
Defendants-Appellants.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 17 C 8729 — Sharon Johnson Coleman, Judge.
____________________
ARGUED MARCH 25, 2019 — DECIDED AUGUST 12, 2019
____________________
Before WOOD, Chief Judge, and FLAUM and SYKES, Circuit
Judges.
WOOD, Chief Judge. Water is vital for both health and sani-
tation. Dehydration affects practically every life function, in-
cluding temperature regulation, digestion, brain function,
toxin elimination, and oxygen distribution. See Jon Johnson,
“Effects of having no water,” MEDICAL NEWS TODAY,
https://www.medicalnewstoday.com/articles/325174.php
2 No. 18-2672
(last visited July 19, 2019). After a few days, total deprivation
of water can be fatal. Id. Basic sanitation is also essential.
The plaintiffs in this case, all pretrial detainees at the Lake
County Adult Correctional Facility, allege that they were
forced to learn this lesson the hard way. For approximately
three days in 2017, the jail officials shut off all water in their
jail without any warning. With no running water, the plain-
tiffs had only limited water that the defendants provided for
their personal and sanitation uses. As a result, they became ill
and feces built up and festered in the jails’ toilets, attracting
insects. When plaintiffs asked for more water, they were
locked down in their cells as punishment. The pretrial detain-
ees responded with this putative class action, in which they
alleged that the defendants violated their Fourteenth Amend-
ment due process rights. Defendants moved to dismiss on the
ground of qualified immunity. The district court denied their
motion, and this interlocutory appeal followed. We agree
with the district court’s decision and affirm.
I
Because this case comes to us as a motion to dismiss as-
serting qualified immunity, we accept all well pleaded factual
allegations in the complaint as true and draw all reasonable
inferences in the plaintiffs’ favor. Reed v. Palmer, 906 F.3d 540,
546 (7th Cir. 2018).
Defendants Lake County Sheriff Mark Curran and Chief
of Corrections David Wathen oversee the Lake County Adult
Correctional Facility. (We refer to them, as well as the various
yet-unnamed defendants, collectively as “Wathen.”) At the
time of these events, plaintiffs (all pretrial detainees) were
housed there. On November 7, 2017, Wathen shut off the
No. 18-2672 3
water at the jail. He did not forewarn any of the detainees that
this shutoff was going to happen. The complaint does not re-
veal why Wathen shut off the water, although he avers in his
briefing that he did so in order to replace a water booster
pump.
During the shutoff, the detainees were not totally without
water. Wathen provided them with five bottles (of indetermi-
nate size) of water per day for their personal use. These five
bottles were all that the detainees were given to drink, brush
their teeth, wash their hands and faces, and take medication.
When individual detainees asked for more water, they were
refused. If a person repeatedly asked for more water, he was
put on lockdown.
Wathen also provided a barrel of water (again, of unclear
size) to each communal area, called a pod, within the jail. The
barrel of water in each pod was to be used for bathing, clean-
ing the pod’s cells, and flushing toilets within the cells. But
not all flushing: the detainees were instructed to flush only
when feces were present. They were forbidden to flush at all
during the night.
Unfortunately, these arrangements for flushing were a
failure, in that they often did not clear the toilets. This led to
feces and urine sitting in toilets throughout the jail for pro-
longed periods of time. This was no small issue, as the jail has
a capacity of approximately 740 inmates. There were thus
hundreds of toilets holding feces and urine. Unsurprisingly,
the continuous presence of excrement produced a powerful
and putrid smell. Insects were also attracted to the unflushed
feces.
4 No. 18-2672
The plaintiffs and other detainees say that these conditions
were disgusting and caused them tangible harm. They allege
that they became “sick, sleep deprived, and agitated” because
of the continuous presence of excrement in their cells; that
they were not provided with enough water to take needed
medications; and that the lack of drinking water and unsani-
tary conditions caused numerous ailments, including “dehy-
dration, migraine headaches, sickness, dizziness, constipa-
tion, and general malaise.” Three days later, on November 10,
2017, the water shutoff ended.
II
Because this appeal comes to us after a denial of qualified
immunity, we must answer two questions: first, whether the
constitutional right asserted by the plaintiffs was clearly es-
tablished at the time the defendants acted; and second,
whether defendants’ actions violated that clearly established
right. Reed, 906 F.3d at 546. “‘If either inquiry is answered in
the negative, the defendant official’ is protected by qualified
immunity.” Id. (quoting Green v. Newport, 868 F.3d 629, 633
(7th Cir. 2017)). Our review is de novo. Id.
When attempting to defeat an assertion of qualified im-
munity, the burden is on the plaintiffs to show that a particu-
lar right is “clearly established.” To meet that burden, a plain-
tiff’s asserted right must be defined “at the appropriate level
of specificity.” Wilson v. Layne, 526 U.S. 603, 615 (1999). “The
Supreme Court has ‘repeatedly told lower courts … not to de-
fine clearly established law at a high level of generality.’” Reed,
906 F.3d at 548 (quoting Volkman v. Ryker, 736 F.3d 1084, 1090
(7th Cir. 2013) (alteration in original)). An appropriately de-
fined right is clearly established if there is a closely analo-
gous—though not necessarily identical—case identifying that
No. 18-2672 5
right, or if “the defendant’s conduct was ‘so egregious and
unreasonable that … no reasonable [official] could have
thought he was acting lawfully.’” Id. (alteration in original)
(quoting Abbott v. Sangamon Cnty., 705 F.3d 706, 724 (7th Cir.
2013)). “The dispositive question ‘is whether the violative na-
ture of particular conduct is clearly established.’” Mullenix v.
Luna, 136 S. Ct. 305, 308 (2015) (quoting Ashcroft v. al-Kidd, 563
U.S. 731, 742 (2011)).
A
Plaintiffs here focus on two conditions that they allege vi-
olated their clearly established rights: the denial of the mini-
mal amount of water needed for necessary activities of life,
and the deprivation of the basic sanitary measure of prevent-
ing the build-up of feces, which forced plaintiffs to be sur-
rounded by their own and others’ excrement. Both of these
claims describe conditions of confinement that courts have
long recognized as potential constitutional violations. It has
been clearly established for decades that prisons must pro-
vide inmates with “the minimal civilized measure of life’s ne-
cessities.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981). We have
interpreted this general statement as a requirement that pris-
ons provide inmates with “reasonably adequate ventilation,
sanitation, bedding, hygienic materials, and utilities.” Gray v.
Hardy, 826 F.3d 1000, 1005 (7th Cir. 2016) (quoting Lewis v.
Lane, 816 F.2d 1165, 1171 (7th Cir. 1987)); see also Woods v.
Thieret, 903 F.2d 1080, 1082 (7th Cir. 1990) (“Clearly, prison
officials have a responsibility to provide inmates with a min-
ima of food, shelter and basic necessities.”).
Wathen argues that despite the generally well-established
nature of these rights, the circumstances of this case—a non-
total deprivation caused by a three-day planned water
6 No. 18-2672
shutdown—take us into novel territory. But what is so new
about it? All but the most plainly incompetent jail officials
would be aware that it is constitutionally unacceptable to fail
to provide inmates with enough water for consumption and
sanitation over a three-day period. Perhaps an official would
be excused for miscalculating the amount of water needed ex
ante, so long as he worked to fix the problem once it mani-
fested. But that is not the case before us. According to plain-
tiffs’ allegations, Wathen provided a limited amount of water,
he and his staff were quickly made aware that more water was
needed both for consumption and for sanitation, and they
failed to provide any additional water. Indeed, plaintiffs al-
lege that Wathen punished them for continued water re-
quests.
The conditions that plaintiffs depict are very similar to
those we have seen in previous cases, in both duration and
severity. In Woods v. Thieret, we stated that an allegation of
three days without food (more specifically, one full day with-
out food, sandwiched between days without dinner or break-
fast) stated a claim for a violation of the Eighth Amendment.
903 F.2d at 1082. In Johnson v. Pelker, 891 F.2d 136 (7th Cir.
1989), we reversed a grant of summary judgment for the de-
fendants because “placing a prisoner in a cell for three days
without running water and in which feces are smeared on the
walls while ignoring his requests for cleaning supplies” could
violate the Eighth Amendment. Id. at 139. Similarly, a number
of our sister circuits have recognized that days-long depriva-
tions of water and continued exposure to human excrement
can violate the Eighth Amendment. See DeSpain v. Uphoff, 264
F.3d 965, 974–75 (10th Cir. 2001) (stating that “[e]xposure to
human waste, like few other conditions of confinement,
evokes both the health concerns emphasized in Farmer [v.
No. 18-2672 7
Brennan, 511 U.S. 825 (1994),] and the more general standards
of dignity embodied in the Eighth Amendment,” and collect-
ing cases with similar holdings from the Second, Fifth, Sev-
enth, and Eighth Circuits dating back to 1972); Dellis v. Correc-
tions Corp. of Am., 257 F.3d 508, 512 (6th Cir. 2001) (holding
that a plaintiff “given only two half pints of milk and one six-
teen and one-half ounce bottle of water” over three days
stated an Eighth Amendment claim); Johnson v. Lewis, 217 F.3d
726, 732 (9th Cir. 2000) (finding allegations of inadequate
drinking water over four days, along with other deprivations,
sufficient to state an Eighth Amendment claim).
We recently reaffirmed in Budd v. Motley that conditions-
of-confinement cases often involve “a mutually enforcing ef-
fect that produces the deprivation of a single, identifiable hu-
man need.” 711 F.3d 840, 843 (7th Cir. 2013) (quoting Wilson
v. Seiter, 501 U.S. 294, 304 (1991)). That is the case here. Draw-
ing reasonable inferences in plaintiffs’ favor, as we must at
this stage, problems caused by limited drinking water may
have been exacerbated by the lack of water for sanitation and
the consequent exposure to feces and insects. The rights that
plaintiffs identify—to have enough water for drinking and
sanitation, and not to be forced to live surrounded by their
own and others’ excrement—are thus clearly established.
B
Wathen argues that his motive for shutting off the water is
important, but that is so only if there is a subjective element
to the plaintiffs’ case. As we now explain, that would be true
if they were convicted prisoners, but it is not for pretrial de-
tainees. Courts more commonly see suits of this nature
brought by prisoners, whose rights are rooted in the Eighth
Amendment’s prohibition on cruel and unusual punishment.
8 No. 18-2672
Pretrial detainees are in a different position, because their de-
tention is unrelated to punishment. Kingsley v. Hendrickson,
135 S. Ct. 2466, 2475 (2015). Pretrial detainees may assert a
conditions-of-confinement claim under the Fourteenth
Amendment’s Due Process Clause. Id. at 2473.
For many years, we analyzed pre-conviction Fourteenth
Amendment and post-conviction Eighth Amendment
conditions-of-confinement claims under the same standard:
that of the Eighth Amendment, which has both a subjective
and an objective component. Farmer, 511 U.S. at 834. On the
subjective side, we asked in both types of cases whether the
defendant was deliberately indifferent “to adverse conditions
that deny ‘the minimal civilized measure of life’s necessities.’”
Budd, 711 F.3d at 842 (quoting Farmer, 511 U.S. at 834); see also
Minix v. Canarecci, 597 F.3d 824, 831 (7th Cir. 2010) (also
equating pretrial detainees to convicted prisoners). The
Supreme Court put a halt to that equation, however, when it
indicated that the interests of pretrial detainees and prisoners
derive from separate sources and must be assessed
differently. See Kingsley, 135 S. Ct. at 2473. The Court
elaborated its reasoning as follows:
[T]he appropriate standard for a pretrial detainee’s ex-
cessive force claim is solely an objective one. For one
thing, it is consistent with our precedent. We have said
that “the Due Process Clause protects a pretrial de-
tainee from the use of excessive force that amounts to
punishment.” Graham [v. Connor, 490 U.S. 386,] 395, n.
10 [(1989)]. And in Bell [v. Wolfish], we explained that
such “punishment” can consist of actions taken with
an “expressed intent to punish.” 441 U.S. [520,] 538
[(1979)]. But the Bell Court went on to explain that, in
No. 18-2672 9
the absence of an expressed intent to punish, a pretrial
detainee can nevertheless prevail by showing that the
actions are not “rationally related to a legitimate non-
punitive governmental purpose” or that the actions
“appear excessive in relation to that purpose.” Id., at
561. The Bell Court applied this latter objective stand-
ard to evaluate a variety of prison conditions, includ-
ing a prison’s practice of double-bunking.
Id.
It is true that Kingsley directly addressed only claims of ex-
cessive force, and so some circuits have understood its hold-
ing to be confined to those facts. See Miranda v. Cnty. of Lake,
900 F.3d 335, 352 (7th Cir. 2018) (collecting cases). We, how-
ever, have not taken that approach. Recognizing “that the Su-
preme Court has been signaling that courts must pay careful
attention to the different status of pretrial detainees,” we have
held that a pretrial detainee’s claims of inadequate medical
care “are subject only to the objective unreasonableness in-
quiry identified in Kingsley.” Id.
The plaintiffs in this case suggest that we should extend
Kingsley further from the medical context to the general
conditions-of-confinement problem we have here. We see no
principled reason not to do so. To the contrary, as we
recognized in Miranda, there is “nothing in the logic the
Supreme Court used in Kingsley that would support this kind
of dissection of the different types of claims that arise under
the Fourteenth Amendment’s Due Process Clause.” Id. The
Supreme Court has also said that medical care is simply one
of the many conditions of confinement to which an
imprisoned person is subjected. Wilson, 501 U.S. at 303
(“Indeed, the medical care a prisoner receives is just as much
10 No. 18-2672
a ‘condition’ of his confinement as the food he is fed, the
clothes he is issued, the temperature he is subjected to in his
cell, and the protection he is afforded against other inmates.”).
As we recognized in Miranda, several of our sister circuits
have viewed Kingsley’s holding as establishing that an objec-
tive inquiry applies to a variety of conditions-of-confinement
claims, not just those involving excessive force. Miranda, 900
F.3d at 351–52; see also Gordon v. Cnty. of Orange, 888 F.3d
1118, 1120, 1122–25 (9th Cir. 2018) (medical-need claim); Dar-
nell v. Pineiro, 849 F.3d 17, 34–35 (2d Cir. 2017) (conditions of
confinement generally); Castro v. Cnty. of L.A., 833 F.3d 1060,
1070–71 (9th Cir. 2016) (en banc), cert. denied, 137 S. Ct. 831
(2017) (failure-to-protect claim). Since Miranda was decided,
the Tenth Circuit has joined those that apply Kingsley’s objec-
tive inquiry to a claim other than excessive use of force. See
Colbruno v. Kessler, –––– F.3d ––––, No. 18-1056, 2019 WL
2751434, at *3–4 (10th Cir. July 2, 2019). Colbruno involved an
allegation that officers unnecessarily walked a pretrial de-
tainee nude through the public halls of a hospital when ac-
quiring clothing would have taken “at most a matter of
minutes,” and then handcuffed him to his hospital bed. Id. at
*1, *5. In applying Kingsley’s objective standard, the Tenth Cir-
cuit made no distinction between excessive force, the forced
unnecessary public nudity, the handcuffing to the hospital
bed, or any other condition or restriction that might violate
the Fourteenth Amendment. See id. at *6 (applying the Kings-
ley objective standard to both the nudity claim and the cuffing
claim).
Like the Second and Tenth Circuits, we see no doctrinal
reason to distinguish among different types of conditions-of-
confinement claims for purposes of applying Kingsley’s
No. 18-2672 11
objective standard. Neither the Supreme Court’s logic nor its
language suggests that such a distinction is proper. See Wil-
son, 501 U.S. at 303; Bell, 441 U.S. at 539 (“[I]f a restriction or
condition is not reasonably related to a legitimate goal—if it
is arbitrary or purposeless—a court permissibly may infer
that the purpose of the governmental action is punishment
that may not constitutionally be inflicted upon detainees qua
detainees.”); see also Miranda, 900 F.3d at 352. We therefore
hold that Kingsley’s objective inquiry applies to all Fourteenth
Amendment conditions-of-confinement claims brought by
pretrial detainees.
C
Though the right to water for drinking and personal sani-
tation, and the right to live in an environment free of accumu-
lated human waste is clearly established, we must still ensure
that plaintiffs have properly invoked that right in their com-
plaint. To survive a challenge under Rule 12(b)(6), a com-
plaint need plead only “enough facts to state a claim for relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). Qualified immunity may be appropriate at the
pleading stage “where the plaintiff asserts the violation of a
broad constitutional right that had not been articulated at the
time the violation is alleged to have occurred.” Jacobs v. City
of Chicago, 215 F.3d 758, 765 n.3 (7th Cir. 2000). But “the plain-
tiff is not required initially to plead factual allegations that an-
ticipate and overcome a defense of qualified immunity.” Id.
“Because a qualified immunity defense so closely depends ‘on
the facts of the case,’ a ‘complaint is generally not dismissed
under Rule 12(b)(6) on qualified immunity grounds.’” Reed,
906 F.3d at 548 (quoting Alvarado v. Litscher, 267 F.3d 648, 651
(7th Cir. 2001)).
12 No. 18-2672
A single clogged toilet does not violate the Constitution,
and prisoners are not entitled to Fiji Water on demand. But on
the other end of the spectrum, a defendant cannot purpose-
fully deny water until a prisoner is on the brink of death or
force a prisoner permanently to live surrounded by her own
excrement and that of others. The latter actions would be so
obviously unconstitutional that qualified immunity could not
protect the perpetrators. See McDonald by McDonald v.
Haskins, 966 F.2d 292, 295 (7th Cir. 1992) (describing how qual-
ified immunity is inappropriate when government action is
“so egregious that no like case is on the books”). Our question
is thus whether the severity and duration of the conditions
Hardeman and the other plaintiffs allegedly experienced
were so significant that, if proved in the end, they violated the
Constitution.
This would be our conclusion even if we took into account
the County’s reason for shutting down the water. For present
purposes, we will assume that Wathen’s stated reason—that
a water booster pump needed to be replaced—is accurate. We
do note that he might not be entitled to this favorable assump-
tion, as the complaint makes no mention of why the water in
the jail was turned off. It is anyone’s guess what discovery will
reveal. Ensuring that repairs are done in a timely manner so
that a jail has clean water is an obviously legitimate govern-
mental objective. But regardless of the legitimacy of that ob-
jective, taking as true the conditions described in the com-
plaint, with the plausible inferences we may draw from them,
we find conditions of confinement that were objectively un-
reasonable and “excessive in relation to” any legitimate non-
punitive purpose. Kingsley, 135 S. Ct. at 2473 (quoting Bell, 441
U.S. at 561). They thus crossed outside of constitutional
bounds.
No. 18-2672 13
Some inconvenience was to be expected when Wathen
shut off the jail’s water. Yet, as we have stressed, the
conditions alleged by the plaintiffs went far beyond
inconvenience. Exposure to hundreds of unflushable toilets is
objectively unreasonable. See DeSpain, 264 F.3d at 974–75;
Johnson, 891 F.2d at 139; LaReau v. MacDougall, 473 F.2d 974,
978 (2d Cir. 1972) (“Causing a man to live, eat and perhaps
sleep in close confines with his own human waste is too
debasing and degrading to be permitted.”). This exposure,
and the stench it caused, was compounded as insects became
drawn to the standing feces and urine. Worse yet, inmates had
insufficient water to shower, to drink, to take medicines, to
brush their teeth, and to clean their living areas; complaining
about this lack of water was met with punishment. This
describes objectively unreasonable conditions for pretrial
detainees. See Woods, 903 F.2d at 1082; Dellis, 257 F.3d at 512;
Johnson, 217 F.3d at 732. It is also plausible that the grossly
unsanitary conditions throughout the jail were compounded
by inmates’ dehydration-induced weakness and illness,
thereby transforming what might otherwise have been a mere
inconvenience into a problem of constitutional magnitude.
See Budd, 711 F.3d at 843.
Wathen points to Tesch v. County of Green Lake, 157 F.3d 465
(7th Cir. 1998), to suggest that the conditions suffered by the
plaintiffs were not constitutionally suspect. Tesch was a pre-
trial detainee with muscular dystrophy. Id. at 467. Because of
his limited mobility, he could not obtain access to the sink in
his cell for drinking water. Id. at 469. He was, however, given
a beverage with each of his meals. Id. Tesch’s deprivation
lasted for less than two days. Id. We held that these conditions
were not so problematic as to violate the Constitution. Id. at
476. But Tesch is easily distinguishable. It applied the more
14 No. 18-2672
demanding Eighth Amendment deliberate-indifference
standard, as opposed to the objective inquiry that we apply
here. See id. at 474–75. In addition, Tesch alleged nothing that
exceeded “the general level of discomfort anyone can expect
to experience while in custody.” Id. at 476. By contrast, plain-
tiffs here allege an assortment of physical illnesses brought on
by water deprivation and appallingly unsanitary conditions
in the Lake County jail.
Finally, we note that because the water shutdown was
planned, none of these issues was unforeseeable or incurable.
Even cursory Internet research would have given Wathen a
general idea of how much water the jail would need to allow
the inmates to flush their toilets each day. And if Wathen
could not procure enough water to fix that problem, there was
a still more obvious solution: portable toilets. If, as the com-
plaint alleges, Wathen was able to transport thousands of bot-
tles of water (five per day for several hundred inmates) and
additional tubs of water into the jail, it is not clear why he
could not similarly import portable toilets into the jail. In-
deed, recognizing that a lack of indoor plumbing is a common
problem at campgrounds, county fairs, music festivals, and
other large gatherings, numerous companies have sprung up
to provide this exact service, including to government enti-
ties. See, e.g. Vendor, Contract, and Payment Search, Contract to
Service Sanitation, CITY OF CHICAGO, https://webapps1.chi-
cago.gov/vcsearch/city/contracts/24835 (showing “multiple
awards for rental and maintenance of portable chemical toi-
lets, sinks, waste water barrels, waterless hand sanitizer dis-
pensers and fresh water trailers” between 2011 and 2020).
Had a longer time for the outage been likely, Wathen perhaps
could have transported the affected inmates to another facility
until the Lake County jail’s repairs were completed. At the
No. 18-2672 15
least, Wathen should have known that he needed to procure
more water on the second and third days of the shutdown
than he supplied for the first.
We do not list these alternatives to suggest that Wathen
must have done one or more of these things to satisfy due pro-
cess. The Constitution is not so inflexible. Instead, we merely
note these examples to show that Wathen appears to have had
numerous options that would have allowed the alleged pump
repair without depriving the detainees of adequate water and
sanitation facilities in the interim. Whether the detainees can
prove what they have alleged, and what Wathen and his co-
defendants can show in response, remains to be seen.
III
“[W]hen the State by the affirmative exercise of its power
so restrains an individual’s liberty that it renders him unable
to care for himself, and at the same time fails to provide for
his basic human needs—e.g., food, clothing, shelter, medical
care, and reasonable safety—it transgresses the substantive
limits on state action set by the … Due Process Clause.”
DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189,
200 (1989). The Supreme Court’s words apply with full force
here. Hardeman and the other plaintiffs allege that the Lake
County officials prevented them from caring for themselves
and then deprived them of the most basic of human needs—
water. The resulting alleged unsanitary conditions and phys-
ical harms were objectively unreasonable conditions of con-
finement that (if proven) violated the Fourteenth Amend-
ment’s due-process guarantee.
We thus AFFIRM the district court’s order denying the de-
fendants’ request for qualified immunity.
16 No. 18-2672
SYKES, Circuit Judge, concurring in the judgment. After
Miranda v. County of Lake, 900 F.3d 335 (7th Cir. 2018), it
makes sense as a doctrinal matter to extend Kingsley’s objec-
tive standard to all conditions-of-confinement claims by
pretrial detainees. As my colleagues explain, when a jail
official harms a pretrial detainee, the constitutional right in
question is the Fourteenth Amendment’s guarantee of due
process, not the Eighth Amendment’s protection against
cruel and unusual punishment. In Kingsley v. Hendrickson,
135 S. Ct. 2466, 2470–71 (2015), the Supreme Court confront-
ed a pretrial detainee’s claim that jail officers used excessive
force against him. The Court explained that the plaintiff’s
due-process claim entailed two state-of-mind questions:
The first concerns the defendant’s state of mind
with respect to his physical acts—i.e., his state
of mind with respect to the bringing about of
certain physical consequences in the world.
The second question concerns the defendant’s
state of mind with respect to whether his use of
force was “excessive.”
Id. at 2472.
As to the first question, the Court reiterated the rule that
negligently inflicted harm is not actionable as a constitution-
al violation; rather, “the defendant must possess a purpose-
ful, a knowing, or possibly a reckless state of mind.” Id. That
point was not disputed; the officers did not deny that they
deliberately used force against the plaintiff. Id. As to the
second question—“the defendant’s state of mind with re-
spect to the proper interpretation of the force … that the
defendant deliberately (not accidentally or negligently)
used”—the Court ruled that the plaintiff need not establish
No. 18-2672 17
that the officers subjectively intended to use excessive force.
Id. Rather, at this step of the decision framework, the Court
held that an objective inquiry applies. Id. at 2472–73. A
pretrial detainee can prevail on an excessive-force claim by
proving that the force deliberately used against him was
objectively unreasonable—namely, by providing “objective
evidence that the challenged governmental action is not
rationally related to a legitimate governmental objective or
that it is excessive in relation to that purpose.” Id. at 2473–74.
In Miranda we extended Kingsley’s “objective unreasona-
bleness” standard to a claim that a pretrial detainee received
constitutionally inadequate medical care. 900 F.3d at 352–54.
We emphasized, however, that Kingsley retained the rule that
mere negligence is not a constitutional violation. Id. at 353–
54. Miranda involved the death of a mentally ill jail inmate
who refused food and water. Her estate sued the jail officials
and medical providers involved in her care. To prevail
against the medical providers, the estate was required to
prove that they “acted purposefully, knowingly, or per-
haps … recklessly when they considered the consequences
of their handling of [her] case.” Id. at 353. The estate’s evi-
dence was sufficient to support an inference that the medical
providers “made the decision to continue observing [the
inmate] in the jail, rather than transporting her to the hospi-
tal, with purposeful, knowing, or reckless disregard of the
consequences.” Id. at 354. Accordingly, we held that “a jury
must decide whether the doctors’ deliberate failure to act
was objectively reasonable.” Id.
Like my colleagues, I see no principled reason to treat
general conditions-of-confinement claims differently than
medical conditions-of-confinement claims. I therefore agree
18 No. 18-2672
that this case is governed by Kingsley’s objective standard—
but importantly, only at the step in the liability framework
that requires an interpretation of the conditions to which the
plaintiffs were subjected during the three-day water shutoff.
As I’ve just explained, under Kingsley the constitutional
claim still carries a subjective component. To prevail, the
plaintiffs must prove that the defendants acted purposefully,
knowingly, or recklessly; negligence is not enough. In addi-
tion, nothing in Kingsley removed the threshold requirement
in every conditions-of-confinement claim: “the inmate must
show that he is incarcerated under conditions posing a
substantial risk of serious harm.” Farmer v. Brennan, 511 U.S.
825, 834 (1994). That’s because only “objectively [and] suffi-
ciently serious” deprivations are actionable as a violation of
the Constitution. Id. (quotation marks omitted). Typically,
this refers to the denial of life’s basic necessities, such as
“adequate food, clothing, shelter, and medical care.” Id. at
832.
So to prevail on a claim alleging unconstitutional condi-
tions of pretrial confinement, the plaintiff must prove three
elements: (1) the conditions in question are or were objec-
tively serious (or if the claim is for inadequate medical care,
his medical condition is or was objectively serious); (2) the
defendant acted purposefully, knowingly, or recklessly with
respect to the consequences of his actions; and (3) the de-
fendant’s actions were objectively unreasonable—that is,
“not rationally related to a legitimate governmental objective
or … excessive in relation to that purpose.” Kingsley, 135 S.
Ct. at 2473–74.
With these understandings, I agree that the qualified-
immunity defense fails at this early stage of the litigation.
No. 18-2672 19
Qualified immunity is normally hard to win on a
Rule 12(b)(6) motion. See, e.g., Reed v. Palmer, 906 F.3d 540,
548–49 (7th Cir. 2018). This case is no exception. The factual
allegations in the complaint describe a three-day water
shutoff in the Lake County Jail in which the plaintiffs and
other inmates were deprived of the minimal amount of
water necessary to stay hydrated, take medication, maintain
basic hygiene, and flush waste from their cell toilets. The
complaint further alleges that as a result of the deteriorating
conditions during the three-day shutdown, the plaintiffs and
other inmates suffered “a variety of ailments, including but
not limited to, dehydration, migraine headaches, sickness,
dizziness, constipation, and general malaise.” Finally, the
complaint alleges that the defendants intentionally and with
deliberate indifference subjected the plaintiffs and other
inmates to these conditions. I agree with my colleagues that
these allegations state a claim for “denial of the minimal
civilized measure of life’s necessities,” Farmer, 511 U.S. at 834
(quotation marks omitted), a clearly established constitu-
tional violation. Majority Op. at pp. 5–6.
The defendants say they had a legitimate purpose for
shutting off the water (to replace a water pump) and the
ensuing conditions in the jail were not excessive in relation
to that purpose. As my colleagues note, the factual basis for
this argument lies outside the complaint. Regardless, we
cannot evaluate the defendants’ response to the water-pump
contingency without a factual record. At this stage we take
the allegations in the complaint as true, and the plaintiffs are
entitled to all reasonable inferences in their favor. The de-
fendants may of course renew their immunity claim as the
facts develop. Reed, 906 F.3d at 548–49 (explaining the differ-
ence in the qualified-immunity analysis at the pleadings
20 No. 18-2672
stage and on summary judgment). For now, the district
judge was right to reject the defense.