                        NONPRECEDENTIAL DISPOSITION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 March 5, 2019*
                                Decided March 6, 2019

                                         Before

                     MICHAEL S. KANNE, Circuit Judge

                     ILANA DIAMOND ROVNER, Circuit Judge

                     DAVID F. HAMILTON, Circuit Judge

No. 17-3320

MARK A. BYRD,                                     Appeal from the United States District
    Plaintiff-Appellant,                          Court for the Central District of Illinois.

      v.                                          No. 16-cv-1241

DANIEL HOBART, et al.,                            Sara Darrow,
    Defendants-Appellees.                         Judge.


                                       ORDER

        While working in the kitchen at Pontiac Correctional Center, Illinois inmate
Mark Byrd observed a cockroach infestation, mice droppings on milk cartons, and other
unsanitary conditions. Byrd sued several prison officials, alleging that these conditions
constituted cruel and unusual punishment in violation of the Eighth Amendment. The
district court entered summary judgment in the officials’ favor, reasoning that Byrd had
failed to show that the allegedly unconstitutional conditions caused him any actual


      * 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. See FED. R. APP. P. 34(a)(2)(C).
No. 17-3320                                                                         Page 2

injury. However, the record reveals a genuine issue of material fact as to whether the
defendants were deliberately indifference to a risk of future injury caused by
contaminated food. We therefore vacate the judgment and remand to the district court
for further proceedings.

        In November 2015, Byrd was assigned to work in the inmate kitchen. According
to Byrd, the kitchen was filthy: he saw cockroaches “everywhere,” including on serving
trays; milk cartons were contaminated with mice droppings and urine; pieces of the
floor were missing; the dishwasher did not seem to be working properly; and workers
were given dirty smocks to wear. Concerned about the safety of eating food prepared in
this kitchen, Byrd filed several grievances complaining about these conditions. The day
after Byrd began working in the kitchen, a staff member submitted a work order
requesting extermination services to address the cockroach infestation. The record does
not reveal whether this work order led to a visit from the exterminator, but if it did, the
treatment was ineffective; the problem persisted. Byrd refused to report for his fourth
day of work and has not worked in the kitchen since.

       Byrd filed this suit against the Pontiac dietary manager and eight dietary
supervisors alleging that each was deliberately indifferent to the kitchen’s unsanitary
conditions. He also sought an order that would prohibit prison officials from serving
meals from the kitchen until the mice and roaches had been exterminated. An
injunction, Byrd said, would “protect [him] from further being subjected to the
substantial risk of harm by the spreading of diseases through the contamination of mice
feces.” As he put it, just “knowing that mice feces and roaches had contaminated your
food … makes you wonder when you will become sick.”

        Byrd and the defendants filed cross-motions for summary judgment. In his
response to the defendants’ motion, Byrd acknowledged that he “has not claimed he
suffered any medical injury.” Rather, he argued, the defendants violated his Eighth
Amendment rights by their deliberate indifference to conditions that pose a substantial
risk of harm, which exists daily “from just eating out of the inmate kitchen.” Byrd
submitted declarations from ten inmate workers as evidence of the kitchen’s unsanitary
conditions. One inmate described seeing rat droppings “on the majority of the food”
and cockroaches “crawling [through] the bread” after rats chewed holes in the storage
bags. Several others stated that they too saw mouse droppings on food—sometimes as
often as “every day”—and that they routinely observed mice in the food bins. One
inmate noted that “certain foods (e.g., breads, cookies, inmate food trays) hav[e] dead
roaches in them,” and that the dishwasher does not reach a high enough temperature to
No. 17-3320                                                                          Page 3

kill the bacteria on pots and pans. Byrd attached a letter from the Center for Disease
Control and Prevention listing diseases transmitted by rodents and an article from an
epidemiology journal discussing the dissemination of bacteria by cockroaches.

       The district court granted the defendants’ motion for summary judgment and
denied Byrd’s, reasoning that Byrd’s failure to show that he suffered “an actual injury
or harm” defeated his claim. The court understood Byrd’s claim to be based not on a
physical injury (since he conceded he had none) but on “[1] the fear or the psychological
trauma that he allegedly suffered or [2] the potential harm that he has sustained as a
result of being exposed to the conditions.” Regarding the first theory, the court
concluded that “his fear is not enough” in light of circuit precedent and “the Prison
Litigation Reform Act’s requirement that there must be a physical injury in order for a
prisoner to recover for an emotional injury.” As for the second theory, the court
acknowledged that it had found cases holding that “an injury or harm is not required to
survive summary judgment in a conditions of confinement claim,” but ultimately
disavowed those cases as inconsistent with circuit precedent.

       On appeal, Byrd challenges the district court’s entry of summary judgment for
the defendants, a decision that we review de novo, construing all facts and reasonable
inferences in favor of Byrd. See Clarendon Nat’l. Ins. Co. v. Medina, 645 F.3d 928, 933
(7th Cir. 2011). We agree with the district court that “genuine disputes of fact exist as to
most of the material issues,” including whether the defendants “possessed the
knowledge required to hold them liable on Byrd’s claim,” and whether they took
reasonable steps to address the conditions. See Wilson v. Seiter, 501 U.S. 294, 303 (1991)
(applying deliberate-indifference standard to conditions-of-confinement claims under
Eighth Amendment). We thus focus on whether Byrd offered sufficient proof that these
conditions, viewed objectively, violate “contemporary standards of decency.”
Helling v. McKinney, 509 U.S. 25, 36 (1993). In the context of this case, contemporary
standards require that officials “provide inmates with ‘nutritionally adequate food that
is prepared and served under conditions [that] do not present an immediate danger to
the health and well-being of the inmates who consume it.’” Smith v. Dart, 803 F.3d 304,
312 (7th Cir. 2015) (quoting French v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1985)).

        Byrd first argues that the defendants were not entitled to summary judgment
“strictly because [he] suffered no physical injury,” because an inmate can recover for
purely psychological harm under the Eighth Amendment. Byrd is correct about the law.
The Prison Litigation Reform Act requires a prisoner to prove physical injury to recover
compensatory damages for emotional harm. See Calhoun v. Detella, 319 F.3d 936, 940
No. 17-3320                                                                              Page 4

(7th Cir. 2003) (discussing 42 U.S.C. § 1997e(e)). But an inmate may still obtain
injunctive relief, nominal damages, and punitive damages based on psychological harm
alone. See id. at 940–42. Nevertheless, Byrd’s first argument is largely irrelevant;
although Byrd hints at some psychological injury in his motion for injunctive relief, he
elsewhere admits that the unsanitary conditions have yet to cause him harm of any
kind. And the record is devoid of evidence of psychological harm.

        Byrd also contends that, contrary to the district court’s ruling, prison officials
may be liable for creating an increased risk of future injury even without proof of
present harm. The defendants argue that Byrd waived this argument on appeal by
raising it for the first time in his reply brief. But we construe pro se appellate briefs
liberally. See Parker v. Four Seasons Hotels, Ltd., 845 F.3d 807, 811 (7th Cir. 2017). This
issue was fully briefed in the district court and Byrd sufficiently flagged it in his
opening brief1—plus, the defendants sufficiently discerned the argument to respond to
it—so we will address it.

        Byrd is, again, correct about the law. “That the Eighth Amendment protects
against future harm to inmates is not a novel proposition.” Helling, 509 U.S. at 33. We
have repeatedly acknowledged that the Eighth Amendment protects prisoners from “an
official’s deliberate indifference to conditions posing an unreasonable risk of serious
damage to the prisoner’s future health.” Henderson v. Sheahan, 196 F.3d 839, 846–47
(7th Cir. 1999); see also Thomas v. Illinois, 697 F.3d 612, 614 (7th Cir. 2012); Smith v. Peters,
631 F.3d 418, 421 (7th Cir. 2011). To withstand summary judgment on this type of claim,
an inmate must “show ‘to a degree of reasonable medical certainty’ that he actually
faced an increased risk of injury.” Gray v. Hardy, 826 F.3d 1000, 1007 (7th Cir. 2016)
(quoting Henderson, 196 F.3d at 851).

       Reviewing the record de novo and drawing all reasonable inferences in Byrd’s
favor, we conclude that Byrd has presented sufficient evidence to meet this standard.
Unlike in other pest-infestation cases where we have found an inmate’s allegations
insufficient even to state a claim, see, e.g., Smith v. Dart, 803 F.3d at 312, Byrd attested to

       1 Byrd cites Thomas v. Illinois, 697 F.3d 612 (7th Cir. 2012) for the proposition that
“a[n] injury need not be shown to recover damages.” The suit in Thomas was dismissed
on sovereign-immunity grounds, but the panel wrote at length “to correct the [district]
judge’s apparent assumption that creation of a mere hazard to health, as opposed to an
actual impairment of health, can never be a harm sufficient to support an Eighth
Amendment violation.” 697 F.3d at 614.
No. 17-3320                                                                        Page 5

an extensive, persistent infestation and furnished other evidence of the same. He
submitted declarations from ten inmate workers detailing the nature, severity, and
duration of the infestations, among other unsanitary conditions. The record shows that
the kitchen is consistently overrun with mice and cockroaches—which sometimes get
on and into food that is then served to inmates—and that extermination services have
not resolved the problem. Further, chunks of the floor are missing, and the functionality
of the dishwasher is questionable. This court has found similar kitchen conditions to be
“grossly inadequate” under the Eighth Amendment. French, 777 F.2d at 1255 (prison
kitchen was “infested with mice and roaches”; floor was “uncleanable due to … missing
tile”; cookware was covered with “uncleanable grime”).

        As evidence that these unsanitary conditions present an increased risk of injury,
Byrd submitted a letter from the Center for Disease Control and Prevention describing
the myriad diseases transmitted by rodents and an article from a medical journal
discussing the role of cockroaches in disseminating bacteria. Citing these same sources,
we have previously acknowledged that “cockroaches can transmit bacteria that
aggravate asthma and cause other disease, and that inhaling microscopic particles of
saliva, droppings, or urine from mice infected with hantavirus can infect a person with
potentially fatal [disease].” Thomas, 697 F.3d at 615 (internal citations omitted).

       The defendants argue that Byrd has not presented sufficient evidence because
“no harm ever materialized from the conditions … over the course of the 15 years that
he consumed food made in the Pontiac inmate kitchen.” But the defendants
misconstrue the nature of the claim. The focus is on the increased risk of future injury—
here, a foodborne illness or worse—so the fact that no harm has yet materialized does
not defeat it. And in this case, where inmates have observed mice droppings, mice, and
cockroaches literally in and on the food, a reasonable jury could conclude that the risk
of harm to Byrd (who eats this food daily) is both substantial and obvious.

        Because Byrd presented sufficient evidence for a reasonable jury to find in his
favor on his Eighth Amendment claim, we VACATE the district court’s judgment and
REMAND for further proceedings consistent with this order. Given the complexities of
this case and the need for expert medical evidence to resolve Byrd’s claims, we urge the
district court to seriously consider recruiting counsel to assist him. See Pruitt v. Mote,
503 F.3d 647, 655–56 (7th Cir. 2007) (en banc). Byrd asks us to reassign this case to a
different district judge on remand, but we see no reason to do so.
