NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 16, 2021*
Decided July 19, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 20-2904
MICHAEL K. BROWN, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 18-CV-1653
KURT PICKNELL, et al., William E. Duffin,
Defendants-Appellees. Magistrate Judge.
ORDER
Michael Brown, who was a pretrial detainee and then an inmate at the Walworth
County Jail in Wisconsin, sued jail staff under 42 U.S.C. § 1983 for violating his rights
under the Eighth and Fourteenth Amendments. He alleged that they failed to address
bugs, mold, dirt, and poor ventilation in his cell block. The district court entered
summary judgment for the defendants. Brown appeals, arguing that the court
improperly disregarded several filings as untimely and resolved material factual
* We have agreed to decide this 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. FED. R. APP. P. 34(a)(2)(C).
No. 20-2904 Page 2
disputes. Because the court appropriately declined to consider the belated filings, and
no reasonable jury could find that the defendants violated Brown’s rights, we affirm.
We recount the facts in the record in the light most favorable to Brown.
See LaBrec v. Walker, 948 F.3d 836, 839 (7th Cir. 2020). At the jail, Brown was housed in
an area containing about 50 single-occupancy cells with sinks and toilets, a dayroom,
and a shared bathroom. A crew of detainees cleaned the common areas daily. The jail
also contracted with a pest-control company, which visited bi-weekly, and cleaned air
vents bi-annually or as needed. For the cells, the jail left out rags, toilet brushes, mops,
and cleaning solutions until 3:00 p.m., after which detainees could obtain those supplies
on request at the discretion of the staff. Despite these measures, Brown observed bugs,
dust, and dirt in the air vents and on the ceiling that would fall in his cell and the
dayroom where he ate. Bugs also flew out of the drains. And the showers and the sink
in his cell had moss, mold, or mildew.
Brown complained to jail staff about these conditions. He might have told either
John Delaney or J.S. Sawyers, jail administrators, that his unit was dirty. If he did, they
told him he could clean. Brown reported the bugs and the dirt in the dayroom to
Correctional Officers Schmidt, who gave him cleaning supplies, and Bardecki, who
alternatively gave him cleaning supplies or told him to file a grievance. Brown also
complained to Officer Phillips about the vents and ceiling dirt. Phillips told him to file a
grievance and called maintenance staff, who cleaned the vents. Brown used the
available supplies to clean the dead bugs and dirt from his cell and the dayroom. And
he electronically submitted through a kiosk grievances about the dirt and bugs, as jail
policy required. Brown also told Schmidt and Sergeant Saultell about moss, mold, and
mildew in the showers, and they told Brown to file a grievance. But Brown never did
so, nor did he file one about moss, mold, or mildew anywhere else.
Brown sued Delaney, Sawyers, Schmidt, Bardecki, Phillips, Saultell, and several
other staff members, alleging that they failed to address these conditions in violation of
his rights under the Fourteenth Amendment (while he was a detainee) and the Eighth
Amendment (after he was convicted). Two other plaintiffs initially joined the suit, but
they did not sign the complaint and were dismissed for failure to prosecute.
The defendants moved for summary judgment. Brown filed a response,
combined with his own motion for summary judgment, on April 28, 2020. This filing
included one brief and several exhibits. After the defendants responded, Brown filed
what he called his “brief in support of motion for summary judgment and brief in
No. 20-2904 Page 3
opposition to defendants’ motion for summary judgment” on August 28. To this brief
he attached proposed findings of fact, a response to the defendants’ proposed factual
findings, and 86 pages of exhibits, explaining in a cover letter that he had
“inadvertently exclude[ed]” those documents from the mailing that was docketed on
April 28. Except for the brief, the documents were signed and dated April 28, 2020.
The district court granted the defendants’ summary-judgment motion and
denied Brown’s. The court explained that, of Brown’s filings docketed August 28, it
considered only his brief. The other materials were untimely, and Brown had not asked
for leave to file them. See E.D. Wis. Civ. R. 7(i), 56(b). Because Brown had not timely
responded to the defendants’ proposed findings of fact, the court accepted them as
undisputed. See E.D. Wis. Civ. R. 56(b)(4). The court then concluded that, because
Brown had never filed a grievance about the mold, mildew, or moss (though a former
co-plaintiff had), he had not exhausted his administrative remedies. As for the other
conditions, the court determined that none was sufficiently serious to implicate the
Constitution. Further, Brown lacked evidence that any defendant who knew about the
conditions responded in a way that violated Brown’s rights.
Brown moved to alter or amend the judgment under Rule 59(e) of the Federal
Rules of Civil Procedure, arguing that the district court should have considered the rest
of his August 28 filings. Although the clerk’s office received the motion within 28 days
of the judgment, staff did not docket it for several weeks, and the court mistakenly
denied it as untimely. Brown filed another motion to alter or amend, contending that he
had timely mailed his initial motion. He also stated for the first time that he had mailed
the materials accompanying his August 28 brief once before, on April 28; the court just
had not received them, he said. The court recognized the docketing error with the first
Rule 59(e) motion but denied relief because Brown had not identified a legal error or
presented any new evidence in either of his post-judgment motions.
On appeal, Brown first argues that the district court improperly resolved factual
disputes in the defendants’ favor and instead should have considered the proposed
findings of fact, response to the defendants’ proposed facts, and supporting exhibits
that were docketed on August 28. He submits an affidavit in which he attests to initially
mailing those documents, postage prepaid, on April 28. Thus, he argues, the
submissions were timely under the prison mailbox rule, which provides that filings are
timely if incarcerated parties deposit them in their institution’s legal mail system by the
due date and provide certain evidence of the submission. See FED. R. APP. P. 4(c); Taylor
v. Brown, 787 F.3d 851, 858–59 (7th Cir. 2015).
No. 20-2904 Page 4
The district court acted within its discretion when it refused to consider the
August 28 materials other than the brief. See Gosey v. Aurora Med. Ctr., 749 F.3d 603, 605
(7th Cir. 2014). Brown did not submit proposed findings of fact and supporting
evidence with his summary-judgment motion, nor did he respond within 30 days to the
defendants’ summary-judgment motion with his answer to their proposed fact
statement. He thus did not comply with the court’s local rules. See E.D. Wis. Civ.
R. 56(b); McCurry v. Kenco Logistics Servs., LLC, 942 F.3d 783, 787 n.2 (7th Cir. 2019)
(district courts may strictly enforce local rules against pro se parties). Although Brown
now swears that he met the deadline (under the prison mailbox rule) by sending those
materials on April 28, we cannot consider on appeal evidence that he did not present to
the district court. See Midwest Fence Corp. v. U.S. Dep’t of Transp., 840 F.3d 932, 946
(7th Cir. 2016). There, Brown supplied only an unsworn assertion in a successive post-
judgment motion, and he does not challenge the denial of that motion.
Next, Brown argues that the district court and the defendants did not warn him
of the consequences of failing to dispute defendants’ proposed findings of fact, and so
the court erred by entering summary judgment against him. But the court included in
its briefing order a copy of Local Rule 56 regarding summary judgment. And in their
summary-judgment motion, the defendants included both the text of the Rule and a
warning that noncompliance could lead to the admission of their version of the facts.
This was all that was required of them. See E.D. Wis. Civ. R. 56(a)(1)(B); Timms v. Frank,
953 F.2d 281, 285 (7th Cir.1992).
Brown finally contends that, even based on only the defendants’ version of
events, the district court’s ruling was wrong because the bugs, dirt, poor ventilation,
and mold amounted to an unconstitutional deprivation, and the defendants’ responses
were inadequate. We disagree. First, Brown cannot pursue his claims about mold,
mildew, and moss because he did not exhaust his administrative remedies. See 42 U.S.C.
§ 1997e(a). To do so, he had to follow the jail’s grievance procedures. See Jones v. Bock,
549 U.S. 199, 211, 217–19 (2007); Lockett v. Bonson, 937 F.3d 1016, 1025 (7th Cir. 2019). But
Brown never filed a grievance about moss, mold, or mildew, though he complained
orally. And the district court was correct that, because the jail’s policy requires inmates
to submit their own electronic grievances, other inmates’ grievances could not exhaust
remedies with respect to Brown’s claims. See WIS. ADMIN. CODE DOC §§ 350.09, 350.26
(jails may establish their own grievance procedures); Pozo v. McCaughtry, 286 F.3d 1022,
1025 (7th Cir. 2002) (inmates must follow administrative exhaustion procedures).
No. 20-2904 Page 5
On the merits, we conduct the Fourteenth Amendment analysis first, because, if
Brown’s properly exhausted claims could not survive summary judgment under the
objective-unreasonableness standard, they would necessarily fail under the Eighth
Amendment’s higher, deliberate-indifference standard. See Farmer v. Brennan, 511 U.S.
825, 834 (1994); Williams v. Shah, 927 F.3d 476, 480 (7th Cir. 2019). To avoid summary
judgment, Brown had to produce evidence that the conditions he experienced were
objectively serious and that the defendants—acting purposefully, knowingly, or
recklessly—responded or failed to respond in a manner that was objectively
unreasonable. See Miranda v. Cnty. of Lake, 900 F.3d 335, 352–53 (7th Cir. 2018); Hardeman
v. Curran, 933 F.3d 816, 823–24 (7th Cir. 2019).
Regardless of whether the conditions Brown faced were sufficiently serious,
there is no evidence that the defendants’ responses were objectively unreasonable.
See Hardeman, 933 F.3d at 823–24. When Brown complained to Delaney, Sawyers,
Schmidt, Bardecki, Phillips, and Saultell, they responded reasonably by telling him to
pursue a grievance, giving him cleaning supplies, or asking maintenance to resolve the
issue. As for the remaining defendants, no evidence shows that they were personally
responsible for, or even knew of, the conditions about which Brown complained, and so
no reasonable jury could find them liable under § 1983. See Rasho v. Elyea, 856 F.3d 469,
478 (7th Cir. 2017). Therefore, the court’s entry of summary judgment in favor of all the
defendants was proper.
AFFIRMED