In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1384
REGGIE TOWNSEND,
Plaintiff-Appellant,
v.
LARRY FUCHS and JERRY ALLEN,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 05 C 204—Barbara B. Crabb, Chief Judge.
____________
ARGUED OCTOBER 25, 2007—DECIDED APRIL 10, 2008
____________
Before EASTERBROOK, Chief Judge, and RIPPLE and KANNE,
Circuit Judges.
KANNE, Circuit Judge. Wisconsin inmate Reggie
Townsend filed a civil-rights action under 42 U.S.C. § 1983
against Larry Fuchs, Security Director at the New Lisbon
Correctional Institution, and Sergeant Jerry Allen, a
correctional officer in the segregation unit at the prison.
Townsend, who was held at New Lisbon at all times
pertinent to this appeal, claimed that Fuchs violated his
Fourteenth Amendment right to due process by placing
him, for 59 days, in administrative segregation—or, as it
is known within the Wisconsin Department of Correc-
2 No. 07-1384
tions (WDOC), temporary lock-up (TLU). See Wis. Admin.
Code DOC §§ 303.02(22), 303.11. Townsend also alleged
that Allen deprived him of his Eighth Amendment right
against cruel and unusual punishment by demonstrating
deliberate indifference to the unsanitary conditions he
endured while in TLU. Fuchs and Allen moved for sum-
mary judgment, but while their motion was pending,
Townsend sought to amend his complaint to include
New Lisbon Warden Catherine Farrey as a named defend-
ant on both claims. The district court granted summary
judgment for both Fuchs and Allen, and denied Town-
send’s motion to amend. We affirm the district court’s
grant of summary judgment for Fuchs and its denial of
Townsend’s motion to amend. However, we reverse the
court’s grant of summary judgment for Allen, and remand
for further proceedings.
I. HISTORY
Townsend’s civil-rights action has a convoluted factual
and procedural history; we will endeavor to simplify
the underlying proceedings, while simultaneously draw-
ing all reasonable factual inferences in Townsend’s favor.
See Vinning-El v. Long, 482 F.3d 923, 924 (7th Cir. 2007). We
begin on November 11, 2004, when several members of
the Latin Kings gang led a riot against correctional officers
stationed in New Lisbon’s Unit A. The gang members
injured more than a dozen officers during the melee; one
gang member, in particular, struck an officer in the jaw
with a padlock that he placed in a sock and swung like
a mace. In response, Warden Farrey placed New Lisbon
in emergency status, suspended the prison’s administra-
tive rules, see Wis. Admin. Code DOC § 306.23(1), and
instructed Security Director Fuchs to transfer inmates
No. 07-1384 3
believed to have participated in the riot to TLU and to
investigate their involvement.
According to the WDOC administrative code, TLU is a
“nonpunitive segregated status allowing an inmate to be
removed from the general population pending further
administrative action.” Id. § 303.02(22). The “main pur-
pose” of TLU is to detain an inmate temporarily “until it is
possible to complete an investigation, cool down a
volatile situation or hold a disciplinary hearing.” Id.
§ 303.11 note. “The effort,” the code continues, “is to avoid
punitive segregation without a prior hearing, while
assuring that inmates can be separated from the general
population when there is good reason to do so.” Id. For
instance, prison officials may assign an inmate to TLU if
the officials suspect that the inmate “may impede a pend-
ing investigation.” Id. § 303.11(4)(a). And in keeping
with the “temporary” aspect of the assignment, there is a
limit on the amount of time that an inmate may spend
in TLU: the initial period of placement may not last longer
than 21 days, and may be extended to a maximum of
63 days. See id. § 303.11(3).
Approximately 150 inmates were assigned to TLU at one
time or another while prison officials attempted to deter-
mine who participated in the November 11 prison riot.
Townsend himself was placed in TLU on November 15,
after officials received word that, during the riot, he
had destroyed evidence that could have revealed the
identities of some of the inmates who were involved. See id.
§ 303.11(1), (4)(a). Upon his transfer, Townsend received
two WDOC notice forms that provided the reason why
he was placed in TLU: one explained that “the offender
may impede a pending investigation,” and the other
stated, “Pending Investigation of Staff Battery.” Townsend
acknowledged those reasons by signing the notice forms.
4 No. 07-1384
Townsend remained in TLU for 59 days while prison
officials investigated his role in the prison riot, and on
January 13, 2005, he was transferred back to New Lisbon’s
general population when the officials were unable to
confirm that he had destroyed evidence regarding the riot.1
In accordance with the WDOC administrative code,
Townsend’s parole eligibility was not affected by his
TLU placement, nor was his sentence extended because of
it. See id. § 303.11 note. Townsend did not receive a con-
duct report, or was otherwise disciplined.
That is not to say that Townsend’s experience in TLU
was entirely pleasant; the accommodations afforded to
him during his stay were less than hospitable. The cells in
TLU are designed to house only one inmate at a time: each
cell is 12 feet by 6½ feet; contains one bunk, one sink,
and one toilet; and is “wet,” meaning that it features a
shower that sprays onto the wall of the cell opposite the
door and drains through the cell’s floor. But because of
the inordinately large number of inmates placed in TLU
on suspicion of participating in the prison riot, Warden
Farrey authorized, and Sergeant Allen helped supervise,
the “double-bunking” of inmates in TLU cells. Conse-
quently, Townsend was placed in a cell that was already
occupied, where he shared the sink, toilet, and shower. He
was, however, given his own “bunk”—a thin mattress that
1
The parties inexplicably agree that Townsend was assigned to
TLU for 63 days. We say “inexplicably” because both sides also
agree, and the record confirms, that Townsend was placed in
TLU on Monday, November 15, 2004, and was transferred
back to general population on Thursday, January 13, 2005. This
period was 59 days, not 63. See http://www.timeanddate.com/
date/duration.html.
No. 07-1384 5
was placed on the concrete floor adjacent to the shower,
the only area in the cell where it would fit. We must
assume, because the party resisting a motion for sum-
mary judgment receives the benefit of all reasonable
inferences, see Vinning-El, 482 F.3d at 924, that the mat-
tress became (in Townsend’s words) “wet, moldy, and
foul smelling” rather quickly. Townsend complained
to numerous prison guards and officials about his unsani-
tary cell conditions and attempted to obtain a new mat-
tress, to no avail. Thus, for the entire 59 days that
Townsend was assigned to TLU, he slept on a wet and
foul mattress.
In the weeks following his transfer back to New Lisbon’s
general population, Townsend filed several complaints
with the prison’s Inmate Complaint Examiner, chal-
lenging both his placement in TLU and the unsanitary
conditions in his cell. After Townsend exhausted the
administrative remedies available to him, see 42 U.S.C.
§ 1997e(a); Wis. Admin. Code DOC § 310.05; Dixon v. Page,
291 F.3d 485, 489-91 (7th Cir. 2002), he brought his § 1983
action against Security Director Fuchs and Sergeant
Allen. Specifically, Townsend alleged that Fuchs violated
his right to procedural due process as interpreted by the
Supreme Court of the United States in Sandin v. Conner,
515 U.S. 472, 483-84 (1995), and Wilkinson v. Austin, 545
U.S. 209, 222-24 (2005). In Sandin, the Court explained that
the Fourteenth Amendment provides to inmates a liberty
interest in avoiding transfer to more restrictive prison
conditions if those conditions result in an “atypical and
significant hardship” when compared to “the ordinary
incidents of prison life.” 515 U.S. at 484-86. In such in-
stances, the Court noted, the prison must afford the
inmate procedural protections before the transfer occurs.
6 No. 07-1384
See id. at 487. Ten years later, the Court decided in
Wilkinson that state inmates in Ohio had a liberty interest in
avoiding placement in the state’s Supermax prison, where
inmates were held alone for 23 hours a day in cells that
measured 7 feet by 14 feet. See 545 U.S. at 224. The
Court concluded that those conditions constituted “an
atypical and significant hardship under any plausible
baseline” because assignment to the Supermax was indefi-
nite and disqualified otherwise eligible inmates for parole
consideration. Id. at 223-24. Townsend claimed that the
conditions he endured while in TLU were sufficiently
analogous to the conditions deemed atypically and signifi-
cantly harsh in Wilkinson. For instance, he drew attention
to the apparent similarities of the sizes of the TLU cells and
Supermax cells; asserted that he, like the inmates incarcer-
ated in the Supermax, was not allowed to have contact with
friends, family, or even other inmates; and contended that
he, unlike the inmates at the Supermax, was not allowed to
leave his cell. Townsend therefore contended that he had
a liberty interest in avoiding placement in TLU, and that
Fuchs deprived him of his due-process rights by transfer-
ring him without first affording him a hearing.
Townsend also alleged that Sergeant Allen deprived
him of his Eighth Amendment rights by demonstrating
deliberate indifference to his basic need for clean and
sanitary bedding. According to Townsend, Allen knew
that he was forced to sleep on a wet and moldy mattress,
and yet did nothing to remedy the unsanitary conditions.
After discovery commenced, Townsend submitted an
affidavit and provided deposition testimony, in which
he explained his allegations against Allen in greater
detail. Specifically, Townsend stated that while he was
in TLU, he personally complained about his mattress to
No. 07-1384 7
Allen and requested a new, clean mattress for his cell.
However, Townsend continued, Allen responded, “We
can’t get you a mattress right now,” and denied his re-
quest without further explanation. Townsend further
related that several prison guards later informed him that
his request for a new mattress was denied because if he
received the mattress, prison officials would have to
provide a new mattress to everyone else in TLU. Townsend
also stated that the unsanitary sleeping conditions
caused him to suffer several severe ailments, such as
respiratory problems, chest and stomach pains, and muscle
aches.
Security Director Fuchs and Sergeant Allen disputed
Townsend’s allegations and moved for summary judg-
ment. Fuchs argued, among other things, that Townsend’s
due-process claim was meritless because the conditions
in TLU were not analogous to those conditions the Su-
preme Court deemed atypically and significantly harsh
in Wilkinson. Allen, in turn, argued that Townsend’s
Eighth Amendment claim failed because he was not
personally responsible for the unsanitary condition of
Townsend’s mattress. In support of his argument, Allen
attested in an affidavit that Townsend never spoke
with him regarding the condition of his mattress; as Allen
put it, “[a]t no time” did Townsend complain to him
“about unsanitary or wet condition[s] of his cell or mat-
tress,” nor did he “personally observe a problem concern-
ing an unsanitary cell or wet mattress” in Townsend’s
cell or any other cell in TLU. But in several proposed
findings of fact that Allen later filed with the district court,
he admitted that Townsend had complained to him about
the state of his mattress and had requested a new one;
Allen further stated that he did not provide Townsend
with a new mattress, even though New Lisbon had clean
8 No. 07-1384
mattresses available. Finally, Allen conceded that he
understood that it is unhealthy to sleep on a wet and moldy
mattress, and that people risk developing health prob-
lems if they are forced to sleep on such a mattress.
After briefing on the summary-judgment motion com-
pleted, Townsend sought leave to amend his complaint and
add Warden Farrey as a defendant to both his due-process
and Eighth Amendment claims. See Fed. R. Civ. P. 15(a). As
Townsend alleged, Farrey visited the TLU unit during the
time that he was assigned there and saw that, when
inmates were double-celled, one inmate had to sleep on the
cell floor. Townsend continued that Farrey was the
“ultimate decision-maker” at New Lisbon during the 59
days he was confined in TLU, and accordingly was in-
volved in denying him his due-process rights, and ex-
hibited deliberate indifference to the unsanitary condi-
tions he endured.
The district court granted Security Director Fuchs and
Sergeant Allen’s motion for summary judgment. The
court first rejected Townsend’s due-process claim against
Fuchs on the ground that Townsend did not have a lib-
erty interest in avoiding TLU placement. The court like-
wise concluded that Townsend’s Eighth Amendment
claim against Allen was meritless. Although the court
assumed that “being forced to sleep on a wet and moldy
mattress for [59] days is sufficiently serious” to establish
an Eighth Amendment violation, the court determined
that Townsend failed to proffer any evidence showing
that Allen was deliberately indifferent to the unsanitary
conditions. As the court explained, Townsend “proposed
no facts to show that he complained about his mattress to
defendant Allen, that he asked defendant Allen for
a replacement because his mattress was wet or foul smell-
No. 07-1384 9
ing or that . . . Allen was aware of the level of deterioration
in the condition of plaintiff’s mattress.”
Finally, the district court denied as futile Townsend’s
motion to amend. Because Townsend had no liberty
interest in avoiding placement in TLU, the court deter-
mined that he had no viable due-process claim against
Warden Farrey. Likewise, the court continued, any
Eighth Amendment claim against Farrey would fail
because Townsend proffered no evidence showing that
she was personally responsible for the conditions in
his cell. The court accordingly entered judgment for
Security Director Fuchs and Sergeant Allen, and closed
the case.
II. ANALYSIS
On appeal, Townsend attacks the district court’s grant of
summary judgment for Security Director Fuchs and
Sergeant Allen. Townsend also asserts that the court erred
by denying his motion to amend his complaint. We
will address these arguments in order, beginning with
the district court’s grant of summary judgment.
A. The district court’s grant of summary judgment
By bringing his § 1983 action against Security Director
Fuchs and Sergeant Allen, Townsend shouldered the
burden of establishing that the men deprived him of his
constitutional rights under the Fourteenth and Eighth
Amendments, respectively. See Johnson v. Snyder, 444
F.3d 579, 583-85 (7th Cir. 2006). Thus, to prevail on his
argument that the district court erroneously granted
summary judgment for Fuchs and Allen, Townsend must
10 No. 07-1384
show that the evidence he proffered created a “genuine
issue as to any material fact” as to whether either man
deprived him of his rights, and that they were not “entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see
also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Vinning-El, 482 F.3d at 924. Our review is de novo, see
Vinning-El, 482 F.3d at 924, and we may affirm on any
basis supported by the record, see Cygan v. Wis. Dep’t of
Corr., 388 F.3d 1092, 1098 (7th Cir. 2004); see also Winters
v. Fru-Con Inc., 498 F.3d 734, 743 (7th Cir. 2007).
1. Townsend’s Fourteenth Amendment claim against
Security Director Fuchs
We first address Townsend’s argument that the dis-
trict court erroneously granted summary judgment for
Security Director Fuchs. Townsend essentially reasserts the
argument that he made before district court. Specifically,
he contends that Fuchs violated his due-process rights
under Sandin and Wilkinson by placing him in TLU with-
out procedural protections.
Because it is undisputed that Townsend was not afforded
a hearing or other procedural protections before he was
placed in TLU, his argument turns on whether he had a
constitutionally protected liberty interest in avoiding
placement in TLU. See Ky. Dep’t of Corrs. v. Thompson,
490 U.S. 454, 459-60 (1989); Gillis v. Litscher, 468 F.3d 488,
491-92 (7th Cir. 2006). The Constitution itself does not
create an interest in avoiding transfer within a correc-
tional facility. See Wilkinson, 545 U.S. at 222; Meachum v.
Fano, 427 U.S. 215, 225 (1976). Nevertheless, in Sandin the
Supreme Court determined that the Fourteenth Amend-
ment provides to inmates a liberty interest in avoiding
No. 07-1384 11
placement in more restrictive conditions, such as segrega-
tion, when those conditions pose an atypical and sig-
nificant hardship when compared to the ordinary inci-
dents of prison life. See 515 U.S. at 484. However, since
the Court decided Sandin, we have repeatedly deter-
mined that even extremely harsh prison conditions may
not be so “atypical” as to create the liberty interest the
Court contemplated. See, e.g., Lekas v. Briley, 405 F.3d 602,
609 (7th Cir. 2005); Thomas v. Ramos, 130 F.3d 754, 760-62
(7th Cir. 1998); Wagner v. Hanks, 128 F.3d 1173, 1175-76
(7th Cir. 1997). To that end, we have concluded that
inmates have no liberty interest in avoiding transfer to
discretionary segregation—that is, segregation imposed
for administrative, protective, or investigative purposes.
See Lekas, 405 F.3d at 608-09 & 608 n.4 (“[R]eassignment
from the general population to discretionary segrega-
tion does not constitute a deprivation of a liberty inter-
est.”); Crowder v. True, 74 F.3d 812, 815 (7th Cir. 1996)
(holding that placement of inmate in non-disciplinary
segregation for three months did not create liberty inter-
est). Indeed, there is nothing “atypical” about discretion-
ary segregation; discretionary segregation is instead an
“ordinary incident of prison life” that inmates should
expect to experience during their time in prison. See Lekas,
405 F.3d at 608-09; Wagner v. Hanks, 128 F.3d 1173, 1176
(7th Cir. 1997) (“Even a prisoner who had committed a
white-collar crime and had been assigned to the low-
est-security prison in the state’s system might find himself
in segregation for a nondisciplinary reason.”); Meriwether
v. Faulkner, 821 F.2d 408, 414 (7th Cir. 1987) (“Given the
broad uses of administrative segregation . . . inmates
should reasonably anticipate being confined in administra-
tive segregation at some point in their incarceration.”).
12 No. 07-1384
Here, it is clear that Townsend’s assignment to TLU was
discretionary. In fact, by admitting that his placement in
TLU was contingent upon prison officials’ continuing
investigation into whether he destroyed evidence re-
lated to the prison riot, Townsend concedes that he was
placed in TLU for discretionary reasons. See Wis. Admin.
Code DOC § 303.11(1), (4)(a); see also Lekas, 405 F.3d at 608
& n.4; Thomas, 130 F.3d at 761. Townsend’s concession
comports with the WDOC’s administrative scheme gov-
erning TLU placement. According to the administrative
code, TLU is, by its very nature, discretionary; it is “a
nonpunitive segregated status” that allows prison offi-
cials “to complete an investigation, cool down a volatile
situation or hold a disciplinary hearing.” See Wis. Admin.
Code DOC §§ 303.02(22), 303.11 note; cf. Russ v. Young, 895
F.2d 1149, 1153-54 (7th Cir. 1989) (noting that TLU deter-
minations are discretionary because they are “dependent
only on the subjective decision of the security officers”).
Moreover, the evidence submitted to the district court
reflects that Townsend was assigned to TLU solely for
discretionary reasons. Townsend received two WDOC
notices explaining that he was being held in TLU for
investigative reasons that he, in turn, acknowledged.
Townsend was then transferred back to New Lisbon’s
general population as soon as he was cleared of any
wrongdoing, and he never was disciplined in connection
with his time in TLU. Simply put, it cannot be disputed
that Townsend’s time in TLU constituted discretionary
segregation, in which he had no liberty interest avoiding.
See Lekas, 405 F.3d at 608 & n.4; Thomas, 130 F.3d at 761.
Townsend continues, however, that although he was
placed in TLU for discretionary reasons, the conditions he
endured while in TLU were sufficiently harsh to trigger
No. 07-1384 13
the due-process protections announced in Sandin. Specifi-
cally, Townsend renews his contention that the condi-
tions he faced in TLU—the double bunking, the sharing
of the small wet cell and its amenities, and the limited
human contact—were sufficiently analogous to the condi-
tions of the state Supermax prison in Wilkinson to create
a liberty interest in avoiding TLU.
Townsend misreads Wilkinson, and in so doing com-
mits a mistake that renders inapt any comparison be-
tween the conditions in TLU and the conditions of the
Supermax prison. As we noted in our recent decision Gillis
v. Litscher, the Supreme Court in Wilkinson did not deter-
mine that the conditions in the Supermax prison created
a liberty interest by themselves. See Gillis, 468 F.3d at
492. Although the Court briefly summarized the condi-
tions that inmates faced in the Supermax, the Court based
its holding largely on the fact that placement was
indefinite and disqualified otherwise eligible inmates
from consideration for parole. See Wilkinson, 545 U.S. at
223-24; Gillis, 468 F.3d at 492. Indeed, absent the indefinite
placement and disqualification from parole, the Court
stated that the conditions of confinement at the Supermax
“likely would apply to most solitary confinement facili-
ties,” suggesting that the conditions themselves were
ordinary incidents of prison life that inmates have no
liberty interests in avoiding. Wilkinson, 545 U.S. at 224;
see also Westefer v. Snyder, 422 F.3d 570, 587 (7th Cir.
2005). In short, the Court in Wilkinson did not delineate
what specific harsh conditions give rise to a liberty inter-
est. See Wilkinson, 545 U.S. at 224; Gillis, 468 F.3d at 492.
And because Townsend’s placement in TLU neither was
indefinite, nor affected his parole eligibility, nothing
in Wilkinson requires us to reconsider our established
14 No. 07-1384
position that inmates have no liberty interest in avoiding
placement in discretionary segregation. See Gillis, 468
F.3d at 492; see also Holly v. Woolfolk, 415 F.3d 678,
680 (7th Cir. 2005) (citing Wilkinson to support proposition
that “being placed in segregation is too trivial an incre-
mental deprivation of a convicted prisoner’s liberty to
trigger the duty of due process”). The district court
thus correctly granted summary judgment for Security
Director Fuchs.
This is not to say that Townsend has no avenue to seek
redress for the conditions he experienced while in TLU.
We conclude only that the conditions have no bearing
on whether New Lisbon prison officials were required to
provide Townsend with procedural protections before
placing him in TLU. The issue of the cell conditions in TLU
is best analyzed as a claim brought under the Eighth
Amendment, cf. Gillis, 468 F.3d at 492-95, which Townsend
raised against Sergeant Allen, and to which we now turn.
2. Townsend’s Eighth Amendment claim against Sergeant
Allen
Townsend next challenges the district court’s grant of
summary judgment for Sergeant Allen. According to
Townsend, he proffered evidence before the district
court showing that Allen had actual knowledge that his
health was jeopardized by sleeping on the wet and moldy
mattress. That evidence, Townsend asserts, created a
genuine issue of material fact as to whether Allen exhib-
ited deliberate indifference to the unsanitary conditions
in his cell.
The Supreme Court has interpreted the Eighth Amend-
ment as requiring a minimum standard for the treatment of
No. 07-1384 15
inmates by prison officials: the prison conditions must not,
among other things, involve “the wanton and unnecessary
infliction of pain.” Rhodes v. Chapman, 452 U.S. 337, 347
(1981); see also Whitman v. Nesic, 368 F.3d 931, 934 (7th Cir.
2004). Accordingly, an inmate’s constitutional challenge to
prison conditions requires us to undertake a two-part
examination. See Whitman, 368 F.3d at 934. First, we must
determine whether the conditions at issue were “suffi-
ciently serious” so that “a prison official’s act or omission
results in the denial of the minimal civilized measure of
life’s necessities.” Farmer v. Brennan, 511 U.S. 825, 834
(1994) (internal quotations omitted); see also Gillis, 468 F.3d
at 493. If the inmate successfully establishes that the
conditions were sufficiently serious, we then examine
whether prison officials acted with “deliberate indiffer-
ence” to the conditions in question. See Wilson v. Seiter,
501 U.S. 294, 302 (1991); Whitman, 368 F.3d at 934. “Deliber-
ate indifference,” in turn, means that the official knew
that the inmate faced a substantial risk of serious harm,
and yet disregarded that risk by failing to take reasonable
measures to address it. See Farmer, 511 U.S. at 847; see also
Johnson v. Phelan, 69 F.3d 144, 149 (7th Cir. 1995). As such,
it is not enough for the inmate to show that the official
acted negligently or that he or she should have known
about the risk. See Pierson v. Hartley, 391 F.3d 898, 902 (7th
Cir. 2004); Haley v. Gross, 86 F.3d 630, 641 (7th Cir. 1996).
Instead, the inmate must show that the official received
information from which the inference could be drawn
that a substantial risk existed, and that the official actually
drew the inference. See Pierson, 391 F.3d at 902; Proffitt
v. Ridgway, 279 F.3d 503, 506 (7th Cir. 2002).
Based on the parties’ dearth of input on the matter, it
appears that they assume that Townsend endured a
16 No. 07-1384
prison condition sufficiently serious to constitute an
Eighth Amendment violation. The parties’ assumption
might be incorrect if Townsend himself contributed to the
mattress’s foul state by, say, failing to place it on top of the
bed while he or his cell-mate showered, and until
the floor had dried. See Freeman v. Berge, 441 F.3d 543,
547 (7th Cir. 2006) (concluding that prisoner’s starvation
was self-inflicted when prison deprived meals because
of his refusal to abide by prison’s meal-time rules). How-
ever, Sergeant Allen forfeited the point on appeal by
failing to raise it in his brief. See Williams v. REP Corp.,
302 F.3d 660, 666 (7th Cir. 2002). And even if Allen had
raised the point, on this record we cannot say for cer-
tain that he would have prevailed. The party opposing
summary judgment receives the benefit of reasonable
inferences, see Vinning-El, 482 F.3d at 924, and it is possible
that there was some reason why Townsend could not
have placed his mattress on top of his cell-mate’s bunk,
so that both mattresses stayed dry. Indeed, at oral argu-
ment Townsend’s attorney stated that Townsend attempted
to move his mattress to keep it from getting wet when
the shower was turned on, but to no avail. If Townsend
was, in fact, unable to move his mattress to a dry area,
then we would be hard-pressed to fault him and his cell-
mate for refusing to abstain from bathing for his entire 59-
day stint in TLU, just so Townsend could have had a dry
place to sleep. See Ramos v. Lamm, 639 F.2d 559, 568
(10th Cir. 1980) (“[A] state must provide . . . reasonably
adequate ventilation, sanitation, bedding, [and] hygienic
materials. . . .”).
But that aside, we must assess the parties’ shared as-
sumption against the record as it is currently developed.
And, in that light, the parties’ assumption seems sound.
No. 07-1384 17
See McCord v. Maggio, 927 F.2d 844, 846-47 (5th Cir. 1991)
(finding Eighth Amendment violation where inmates
“were provided mattresses at night which were placed
on the sometimes flooded floors of the cells . . . [where
they] ‘either had to stand up all night or sleep on a wet
mattress on the floor’ ”). We have stated that a lack of
sanitary conditions, including clean bedding, may qualify
as a denial of the “minimal civilized measure of life’s
necessities.” Gillis, 468 F.3d at 494; see also McCord, 927 F.2d
at 846-47; Maxwell v. Mason, 668 F.2d 361, 363 (8th Cir. 1981)
(stating confinement in isolation without adequate clothing
or bedding supports Eighth Amendment claim); Ramos, 639
F.2d at 568.
We therefore turn our attention to whether Townsend
proffered evidence establishing that Sergeant Allen was
deliberately indifferent to the unsanitary conditions in his
cell. The district court concluded that Townsend proffered
no such evidence; as the court explained, Townsend
“proposed no facts” showing that he complained about
his mattress to Allen. But the district court did not prop-
erly characterize the evidence when reaching this con-
clusion, and, more importantly, did not view the evid-
ence in a light most favorable to Townsend. See Vinning-El,
482 F.3d at 924. Specifically, Townsend submitted an
affidavit and provided deposition testimony, in which he
stated that he personally complained about his mattress
to Allen and requested a new, clean mattress for his cell.
Townsend further related that Allen denied his request
without explanation, and that he later learned that his
request was denied on the basis that if he received a
mattress, everyone else in TLU would also have to receive
one. Allen initially disputed Townsend’s version of events
in an affidavit of his own, and for a time during the sum-
18 No. 07-1384
mary-judgment proceedings, both men stood by their
respective stories and asserted that their version of
events—and only their version—was true. But then
Allen’s story wavered. Allen stated in proposed findings
of fact that Townsend complained to him about the
state of his mattress and requested a new one. Allen fur-
ther admitted that he did not provide Townsend with a
new mattress even though the prison had clean mattresses
available, and that he also understood that an individual
could develop health problems if he was forced to sleep
on a wet and moldy mattress.
In other words, neither Townsend, nor Sergeant Allen,
proffered evidence beyond their own testimony that
either directly corroborated their respective stories, or
completely refuted the competing version of events. Thus,
the dispute over whether Allen knew about Townsend’s
cell conditions comes down to a good old-fashioned
swearing contest that can be resolved only by assessing
the credibility of the two men. Credibility determina-
tions, however, lie exclusively within the fact-finder’s
domain and are not appropriate for a district court to make
at the summary judgment stage, see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986); Ritchie v. Glidden Co.,
242 F.3d 713, 723 (7th Cir. 2001); Freeman v. Madison Metro.
Sch. Dist., 231 F.3d 374, 379 (7th Cir. 2000), particularly
when the moving party’s version of the facts changed over
time to eventually support the non-moving party’s posi-
tion, see Outlaw v. Newkirk, 259 F.3d 833, 836 (7th Cir. 2001)
(“Summary judgment is warranted only if ‘there is no
genuine issue as to any material fact and [ ] the moving
party is entitled to a judgment as a matter of law.’ ” (alter-
ation in original) (emphasis added) (quoting Fed. R. Civ. P.
56(c)).
No. 07-1384 19
Therefore, when we view the record in the light most
favorable to Townsend, we see a material dispute over
whether Sergeant Allen knew that Townsend was forced
to sleep on the wet and moldy mattress while he was in
TLU. See Payne v. Pauley, 337 F.3d 767, 771 (7th Cir. 2003)
(“[W]e have warned before of falling for the trap of weigh-
ing conflicting evidence during a summary judgment pro-
ceeding.”). And whether Allen knew about the substan-
tial risk of serious harm created by the unsanitary cell
conditions speaks directly to whether he exhibited deliber-
ate indifference to Townsend’s plight. See Pierson, 391
F.3d at 902; Proffitt, 279 F.3d at 506. The district court
accordingly was wrong to grant summary judgment for
Allen.
B. The district court’s denial of Townsend’s motion to amend
Finally, Townsend argues that the district court erred
by denying his motion to amend his complaint and name
Warden Farrey as a defendant. The district court con-
cluded that such an amendment would be futile because
Townsend’s proposed claims against Farrey would not
survive summary judgment. See King v. E. St. Louis Sch.
Dist. 189, 496 F.3d 812, 819 (7th Cir. 2007); Sound of Music
Co. v. Minn. Mining & Mfg. Co., 477 F.3d 910, 923 (7th Cir.
2007). That decision was one left to the district court’s
discretion, Trustmark Ins. Co. v. Gen. & Cologne Life Re of
Am., 424 F.3d 542, 553 (7th Cir. 2005), which, we cannot say,
the court abused. It would, indeed, be futile for Townsend
to include Warden Farrey as a defendant on his due-
process claim; as explained earlier, Townsend had no
liberty interest in avoiding placement in TLU, and thus his
claim would fail regardless of whom he named as a
defendant. See King, 496 F.3d at 819; see also Lekas, 405 F.3d
20 No. 07-1384
at 607. And Townsend failed to establish that Farrey had
direct control over the unsanitary conditions in TLU. The
most that Townsend asserts is that Farrey should have
known about the conditions in his cell because, as the
“ultimate decision-maker” at New Lisbon, she knew that
inmates were double-celled in TLU and had to sleep on the
floor. But because Townsend points to no evidence show-
ing that Farrey either observed Townsend’s cell personally
or was informed of his specific situation, he would be
unable show that she acted with deliberate indifference by
failing to remedy the conditions in his cell. See Galdikas v.
Fagan, 342 F.3d 684, 693 (7th Cir. 2003) (“ ’An individual
cannot be held liable in a § 1983 action unless he caused or
participated in [the] alleged constitutional deprivation.’ ”
(quoting Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir.
1983))); Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995);
see also Farmer, 511 U.S. at 837. Thus, the district court cor-
rectly concluded that it would be futile to add Farrey as a
defendant to Townsend’s Eighth Amendment claim, see
King, 496 F.3d at 819, and was right to deny his motion
to amend.
III. CONCLUSION
To recap, we AFFIRM both the district court’s grant of
summary judgment for Security Director Fuchs and its
denial of Townsend’s motion to amend. However, we
REVERSE the court’s grant of summary judgment for
Sergeant Allen, and REMAND for further proceedings.
USCA-02-C-0072—4-10-08