                        NONPRECEDENTIAL DISPOSITION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 5, 2017*
                                   Decided July 6, 2017

                                          Before

                       RICHARD A. POSNER, Circuit Judge

                       MICHAEL S. KANNE, Circuit Judge

                       DIANE S. SYKES, Circuit Judge


Nos. 16-3716, 16-3717 & 16-3731

DOTHAN ROGERS, JIMMIE PAIGE,                    Appeals from the United States District
and JOHN SWANSON,                               Court for the Central District of Illinois.
      Plaintiffs-Appellants,
                                                No. 13-CV-3240
      v.
                                                Sue E. Myerscough,
GREGG SCOTT, et al.,                            Judge.
    Defendants-Appellees.
                                        ORDER

       For 23 days in the middle of summer, the air conditioning in one of the units of
the Rushville Treatment and Detention Facility stopped working. Two weeks into the
outage, more than 30 residents filed lawsuits under 42 U.S.C. § 1983 claiming that
Rushville’s director and employees were deliberately indifferent to the discomfort and
health risks resulting from the extreme heat. The district judge consolidated the cases


      *  We have agreed to decide these cases without oral argument because the briefs
and record adequately present the facts and legal arguments. See FED. R. APP.
P. 34(a)(2)(C).
Nos. 16-3716, 16-3717 & 16-3731                                                   Page 2

and after discovery granted summary judgment for the defendants. Only three of the
plaintiffs in the consolidated cases—Dothan Rogers, Jimmie Paige, and John
Swanson—have appealed. Because a jury could not find that the defendants deliberately
disregarded the ill effects from the lack of air conditioning, we affirm.

         We review a grant of summary judgment de novo, construing the record in the
light most favorable to the opponents. See Whiting v. Wexford Health Sources, Inc., 839 F.3d
658, 661 (7th Cir. 2016). Three compressors provide cooling in the plaintiffs’ unit, which
has windows that cannot be opened. One of those compressors failed in early July 2013,
and on July 24 before that first compressor could be repaired, a second one also failed.
The remaining compressor was inadequate by itself to cool the plaintiffs’ unit (though
air still could be circulated through the vents). There is some disagreement about the
measures the defendants took to relieve the resulting heat, but there is no genuine
dispute about the following facts.1 For eight days after the second compressor failed, the
internal temperature, as measured and logged electronically, stayed in the middle 70s.
Then on August 2 the inside temperature reached 80 degrees. Rushville’s engineer had
been trying to repair the system, but on August 5 he abandoned this effort and notified
Rushville’s director that two compressors costing $10,000 each were needed to make the
system operational. That same day the Department of Human Services, which operates
Rushville, approved the expense. Two days after that, Rushville administrators
submitted the necessary paperwork to a state procurement officer, explaining that the
purchase should be made “as quickly as possible” because residents were beginning to
complain. The electronic logs show that the internal temperature peaked at 85 degrees
on August 7 and remained in the low 80s until repairs were completed nine days later.

       1 At summary judgment the plaintiffs contested a declaration from Rushville’s
director, see 28 U.S.C. § 1746, offered on behalf of all the defendants, explaining the
operation of the unit’s air-conditioning system. The plaintiffs objected that Rushville’s
director lacks expertise with air-conditioning systems and that “no expert testimony or
blue prints” had been introduced. But the director’s declaration is corroborated by the
declaration of the facility engineer, who is an expert on Rushville’s air-conditioning
system. The plaintiffs also contested the director’s averment that when the second
compressor failed on July 24, the staff already had been working on the first compressor
and continued trying to repair the system. Again the engineer confirmed the director’s
statement, and the engineer would know because he was doing the work. Regardless,
the plaintiffs’ concerns do not amount to genuine disputes because they did not
introduce any evidence to contradict the defendants’ evidence. See Carroll v. Lynch,
698 F.3d 561 (7th Cir. 2012).
Nos. 16-3716, 16-3717 & 16-3731                                                   Page 3

       On August 8 the district court received the first of the § 1983 complaints. That
same day the shift commander in the plaintiffs’ unit directed staff to open the outside
door at night (when Rushville’s residents are secured in their rooms), allow residents to
freely open their “chuckholes” (4” by 12” slots in the solid room doors for delivering
meals), and place fans in the outside entrance to facilitate airflow. Rushville’s director
also asked staff to ensure that residents had adequate access to ice. The following day
more residents filed lawsuits, prompting the district court to contact the state Attorney
General’s office about the situation. That same day the procurement officer finalized the
order for compressors, and installation was set for August 16.

       Throughout the outage the residents had access to water in their rooms and
except at night, showers in the dayroom. But the tap water was “hot,” they contended,
and the showers worsened the internal humidity. The residents’ doors open to the
shared dayroom, where staff had placed industrial-sized fans, but those fans had
minimal effect day or night. The relief from opening the outside door at night also was
minimal since by that hour the residents were locked in their rooms.

        The areas of disagreement between the parties largely concerned how much of
the defendants’ efforts to minimize the heat filtered down to individual residents.
Residents don’t automatically receive personal fans but can purchase them from outside
vendors. The defendants expedited this process during the outage, though the residents
say this step was not taken until after the first lawsuit was filed on August 8, too late to
benefit anyone. But there is no dispute that the only two residents who filed grievances
asking to borrow a fan were loaned one at no cost. The defendants also provided extra
ice for the residents, although the supply was limited by the capacity of the three ice
machines and some residents did not benefit. Rushville administrators further
authorized residents to have unfettered access to a side yard during the day (beyond
their normal yard access and rotating use of an air-conditioned gym shared with other
housing units), but several residents complained they did not receive this privilege.
Medical care was not interrupted by the outage, and only one of the named plaintiffs
(who is not a party to this appeal) submitted a medical request related to the heat.

        By the time the air conditioning was repaired, 35 residents had filed suit. The
district court ordered each plaintiff to submit an affidavit addressing (1) when the air
conditioning failed; (2) how hot it was or felt; (3) any physical difficulty or injury
attributable to the heat; (4) availability of water, ice, and fans; (5) access to
air-conditioned areas during the day; and (6) specific requests made to the defendants
and the responses received. Twenty-two of the plaintiffs complied and their accounts
Nos. 16-3716, 16-3717 & 16-3731                                                   Page 4

differed. Seven plaintiffs said they did not get ice. One acknowledged receiving ice once
or twice per day while another was given ice four times daily. Five others reported not
receiving “extra” ice, and the rest included in their affidavits multiple, though internally
inconsistent, statements about the amount of ice they received. The plaintiffs gave
similarly inconsistent reports about their access to the yard during the outage. Two said
their access was limited while six others reported receiving extra yard access after the
lawsuits had been filed. Most of the plaintiffs who responded, however, admitted
receiving extra yard access.

        The three plaintiffs who have appealed averred that the temperature in the
facility was at least 80 degrees, though two said it sometimes broke 100 degrees. Rogers
insisted he was allowed outside only one hour per day while Paige said he was given
extra time outside during the last week of the outage. Rogers, who weighs 345 pounds
and suffers from diabetes, high blood pressure, and a breathing disorder, recalled
difficulty breathing during nighttime lockup. He also averred that he was not given
“cold” water “or even kind words” and received extra ice only after deciding to sue.
Swanson similarly denied getting ice. All three declared that they were constantly
sweating and suffered skin sores and rashes as a result of the heat. They also recounted
complaining to unnamed Rushville staff about the heat, but none of them described a
specific complaint or request for accommodation made to one of the defendants.

        To succeed on a claim of deliberate indifference under the Due Process Clause of
the Fourteenth Amendment, the Rushville plaintiffs needed evidence demonstrating
that (1) they were exposed to extreme cell temperatures that caused severe discomfort or
created a risk of harm and (2) Rushville employees acted with deliberate indifference to
those conditions. See Sain v. Wood, 512 F.3d 886, 893–94 (7th Cir. 2008); Dixon v. Godinez,
114 F.3d 640, 644 (7th Cir. 1997). The plaintiffs would not have been required to show
that the temperatures imminently threatened their health, Del Raine v. Williford, 32 F.3d
1024, 1035 (7th Cir. 1994), or that their plight was literally ignored, Haywood v. Hathaway,
842 F.3d 1026, 1031 (7th Cir. 2016). But they did have to show that the defendants were
aware of sufficiently serious conditions yet intentionally or recklessly did nothing. See id.

       In granting summary judgment for the defendants, the district court first
concluded that the plaintiffs could not establish that they suffered a sufficiently serious
deprivation despite the uncomfortably hot conditions. The court acknowledged the
Supreme Court’s admonishment that “[p]ersons who have been involuntarily
committed are entitled to more considerate treatment and conditions of confinement
than criminals whose conditions of confinement are designed to punish.” Youngberg v.
Nos. 16-3716, 16-3717 & 16-3731                                                   Page 5

Romeo, 457 U.S. 307, 321–22 (1982). But ultimately the district court reasoned that a high
temperature of 85 degrees was not hot enough to trigger a constitutional violation,
especially in light of our decision in Sain, 512 F.3d at 886. In that case a civilly detained
sex offender was housed all summer in a room without air conditioning, and although
the room had a window that opened, the window lacked a screen, allowing bees, wasps,
and spiders to enter. Id. at 888–89. We concluded that those conditions were not serious
enough to violate the Constitution. Id. at 894. And here, the court reasoned, the plaintiffs
lacked air conditioning for only three weeks. They were “confined to their rooms only at
night, when the outdoor air was cooler,” the court said, and during the day, they had
access to the outdoors and air-conditioned areas of the facility, could take showers, and
were provided drinking water, ice, and medical care. The court thus concluded that the
conditions, while uncomfortable, were not serious enough to violate the Constitution.

       The court went on to consider, though, whether a jury could find that the
defendants had been deliberately indifferent even assuming that the plaintiffs had
suffered a sufficiently serious deprivation. In answering that question in the negative,
the court explained that the Rushville residents had continuous access to water and,
during daytime hours, use of the showers and dayroom, as well as their usual access to
the yard and air-conditioned areas of the facility. The residents also had at least some
access to ice (though the amount is a point of debate), and those who asked in writing for
a fan received it. The court acknowledged the plaintiffs’ argument that preexisting
medical conditions put them at risk of harm. But only one of the many plaintiffs had
asked for medical care during the outage, and he is not a party to this appeal.

        The three plaintiffs who did appeal—Rogers, Paige, and Swanson— first argue
that the district court denied them discovery. At no point did these plaintiffs submit an
affidavit or declaration explaining that they lacked facts necessary to respond to the
defendants’ motion for summary judgment, nor did they request more time to respond.
See FED. R. CIV. P. 56(d); Kallal v. CIBA Vision Corp., 779 F.3d 443, 446–47 (7th Cir. 2015);
Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 628 (7th Cir. 2014). When the district
judge consolidated these lawsuits, she ordered the defendants to disclose relevant
evidence, including the maintenance records for the air-conditioning system, the date
they learned of a problem, the temperatures indoors and outside during the outage, the
steps taken to repair the air conditioning and alleviate the residents’ discomfort,
complaints they received from residents and the responses from staff, and an
explanation for not providing specific accommodations like allowing residents to sleep
with their doors open or move into another air-conditioned area. The judge also allowed
the plaintiffs to file individual responses to the motion for summary judgment, so each
Nos. 16-3716, 16-3717 & 16-3731                                                   Page 6

had a chance to ask for further discovery. None of them did, making their contention
that they were denied discovery frivolous.

       Rogers, Paige, and Swanson also argue that the district court erred in concluding
that they couldn’t establish that they suffered a sufficiently serious deprivation,
especially given Rogers’s and Paige’s preexisting medical conditions (diabetes, obesity,
and breathing disorders). These impairments, they argue, made them more vulnerable
to health complications caused by the excessive and prolonged heat. These plaintiffs
further note that the internal temperature readings provided by the defendants—the
highest being 85 degrees—do not account for the humidity, which was exacerbated by
running the showers in the facility.

        In responding to this argument, the defendants rely heavily on Dixon, 114 F.3d
at 640, in which this court upheld the grant of summary judgment against an inmate on
his claim that confining him in an unventilated cell during summer violated the Eighth
Amendment. The inmate’s cell was not air conditioned, but he did have a window that
opened, a small electric fan, and the ability to open his chuckhole to create a cross breeze.
The outage at Rushville, however, is readily distinguishable from the circumstances in
Dixon and Sain because at Rushville the windows cannot be opened and the residents
were not automatically given personal fans. See Hinojosa v. Livingston, 807 F.3d 657, 661–
62, 664 (5th Cir. 2015) (recognizing that the complaint filed by the representative of a
deceased inmate who suffered from hypertension, diabetes, depression, and
schizophrenia stated an Eighth Amendment claim arising from the inmate’s heat-related
death in a Texas prison cell with sealed windows where the inside temperatures
consistently exceeded 90 and even 100 degrees).

       But the answer to this question cannot change the outcome for these plaintiffs
because like the district court, we conclude that a jury could not find on this evidence
that the defendants consciously disregarded the heat and its effects on the plaintiffs. It is
undisputed that the defendants had been trying to repair the first compressor even
before the failure of the second one caused all cooling to cease. It is also undisputed that
Rushville’s engineer concluded that the system could not be repaired without new
compressors and notified the facility director, who immediately sought approval to
purchase them at a cost of $20,000.

       Beyond expediting this significant purchase, the defendants kept the ventilation
system running, placed industrial-sized fans in the dayroom, and began leaving the
outside door open at night to let cooler air into the unit. The defendants provided ice and
residents had access to water at all times. During the day, residents could leave their
Nos. 16-3716, 16-3717 & 16-3731                                                   Page 7

rooms, use the showers, go outside, and utilize the air-conditioned gym on a rotating
basis. And while the plaintiffs contend that their lawsuits are what prompted Rushville
staff to open the outside door at night and make extra ice and outdoor time available, we
note that the timing of these accommodations also coincides with the spike in outdoor
temperatures that first raised the indoor temperature above the middle 70s.

        Finally, the defendants responded favorably to the few written requests from
residents for accommodations and medical care. As the district court pointed out, only
six residents submitted grievances relating to the heat, and only one of those six filed
suit. That resident had asked to borrow a fan and promptly was given one. In contrast,
Rogers, Paige, and Swanson assert that their medical issues make them especially
vulnerable to the heat, but not one of them submitted a grievance or asked for medical
care during the outage. And though each of them vaguely asserted in his discovery
affidavit that he complained about the heat to Rushville staff, none of the three identified
a specific need or request that was communicated to staff but ignored.

       The judgment in each appeal is AFFIRMED.
