                         NONPRECEDENTIAL DISPOSITION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 April 23, 2019 *
                                  Decided April 26, 2019

                                           Before

                           MICHAEL S. KANNE, Circuit Judge

                           DAVID F. HAMILTON, Circuit Judge

                           AMY C. BARRETT, Circuit Judge

No. 18-2313

ANTHONY W. REED,                                  Appeal from the United States District
    Plaintiff-Appellant,                          Court for the Southern District of
                                                  Indiana, Terre Haute Division.
       v.
                                                  No. 2:16-cv-00319-WTL-DLP
MARK J. BOWEN, et al.,
    Defendants-Appellees.                         William T. Lawrence,
                                                  Judge.

                                         ORDER

        Anthony Reed contends in this suit under 42 U.S.C. § 1983 that while he was at
an Indiana jail, his jailers violated his constitutional rights by putting three inmates in a
cell meant for two and feeding him unhealthy food. Reed also alleges that a jail official
retaliated against him when he threatened to sue. At screening, the district court
dismissed Reed’s claim about the jail’s unhealthy food, but allowed him to proceed on
his claims about triple-celling and retaliation. Later, it entered summary judgment for

       *
         We have agreed to decide the 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. 18-2313                                                                          Page 2

the defendants. Because the district court applied the wrong test to evaluate Reed’s
claims about triple-celling and food, and factual questions are in genuine dispute, we
vacate the judgment in part and remand on those two claims, but otherwise affirm.

        We begin with the allegations about food. Because the district court dismissed
this claim at screening, we take the allegations as true and draw reasonable inferences
in Reed’s favor. Wilson v. Warren Cty., 830 F.3d 464, 467 (7th Cir. 2016). Reed alleges that
the food at Hamilton County Jail lacked nutrients and was unhealthy. For breakfast, he
received only sugary foods—muffins, cereal bars, or pop-tarts; for lunch, a “hot” meal
that was served cold; for dinner, cold, sometimes frozen, sandwiches; and overall, very
few fruits or vegetables. He said that, because he was not allowed to exercise, this diet
gave him headaches, high-blood pressure, and dizzy spells. When he complained, jail
officials told him that “if [he] did not like” the food, he should not have come to jail.

         The claims about triple-celling and retaliation come next. Because the court
decided these at summary judgment, we do not rely on allegations, but construe the
record in the light most favorable to Reed. See Hernandez v. Dart, 814 F.3d 836, 840
(7th Cir. 2016). Reed was an inmate for over two years at the jail. The jail’s population
includes both pretrial detainees and convicted prisoners. (Reed entered the jail as a
detainee; the record does not reflect when his status changed to prisoner.) According to
jail officials, to promote safety within the jail, they celled together inmates with the
same security classification. This policy led to putting three inmates in a cell designed
for two. When prisoners and pretrial detainees are “triple-celled,” two sleep in bunks
and the third sleeps on a mattress on the floor.

        Reed was triple-celled for 51 (nonconsecutive) days and was let out of his cell no
more than 4 hours per day. The floor of each three-inmate cell ranged from 74 to 80.5
square feet. With bunks, a table and chairs, and toilet occupying about 27 square feet,
each inmate had at most 18 square feet (equivalent to 6 feet by 3 feet) to himself. And
when someone slept on the mattress, it covered the entire floor, eliminating all free
space. The cramped quarters took their toll on Reed. He developed “an intense itching”
on his face from the cell’s crowded and dirty conditions. He could not clean the filth
that his crowded cells generated because the cleaning products that the officials
supplied were, he said, too diluted. Reed complained about these conditions to no avail.
Jail officials respond that they have no record that he complained about itching to
medical staff. They add that while Reed was at the jail, cleaning supplies were diluted
in accordance with the manufacture’s instructions, the jail’s air quality was normal, and
overall the facility met their minimum standards for functionality and cleanliness.
No. 18-2313                                                                            Page 3

        When Reed’s time at the jail ended, he experienced what he considers retaliation.
As Officer Jacob Miller prepared to transport Reed to state prison, Reed told Miller that
he was going to sue about conditions at the jail. Miller replied, “We don’t care. Go
ahead and do what you gotta do.” After loading Reed into the transport van, Miller
placed a bag containing Reed’s legal papers in the front seat and drove to the jail’s
garage, after which Reed saw a man holding a similar bag. Reed never received his bag
after the transport, and he infers that Miller discarded it. Miller maintains that he forgot
to drop off Reed’s bag at the state prison and later mailed it after realizing his mistake.

        This lawsuit followed, raising claims under the First, Eighth, and Fourteenth
Amendments. The district court analyzed the unhealthy food and triple-celling claims
under only the Eighth Amendment, believing that there is no practical difference
“between the standards applicable to pretrial detainees and convicted inmates.” Based
on this, it dismissed the unhealthy-food claim (and thus refused to allow Reed to add
the prison’s nutritionist as a defendant), reasoning that the allegations failed to state a
claim. The district court later entered summary judgment for the defendants on the
triple-celling and retaliation claims. It ruled that the Eighth Amendment did not
mandate a minimum amount of square footage, the jail’s air quality was satisfactory,
the facility was clean, and the cleaning supplies were effective. The court also ruled that
the First Amendment retaliation claim failed because Reed offered no evidence that
Miller had a retaliatory motive.

       On appeal, Reed argues that the court should not have entered summary
judgment on his triple-celling claim. We agree. This claim turns on several unresolved
fact questions. The one that we address first is how long Reed was a pretrial detainee as
opposed to a convicted prisoner at the jail.

       As a pretrial detainee, Reed’s rights derive from the Due Process Clause of the
Fourteenth Amendment, not the Eighth Amendment. See Kingsley v. Hendrickson,
135 S. Ct. 2466, 2475 (2015). Although the district court saw no difference between the
two, “the Supreme Court has been signaling that courts must pay careful attention to
the different status of pretrial detainees.” Miranda v. Cty. of Lake, 900 F.3d 335, 352
(7th Cir. 2018). A detainee’s claim differs from a prisoner’s because “pretrial detainees
(unlike convicted prisoners) cannot be punished at all.” Kingsley, 135 S. Ct. at 2475. In
bringing a conditions-of-confinement claim, a pretrial detainee “can … prevail by
showing that the actions are not ‘rationally related to a legitimate nonpunitive
governmental purpose’ or that the actions ‘appear excessive in relation to that
purpose.’” Kingsley, 135 S. Ct. at 2473 (quoting Bell v. Wolfish, 441 U.S. 520, 561 (1979)).
No. 18-2313                                                                           Page 4

The Eighth Amendment is more permissive; it requires only that conditions not cause
an “unquestioned and serious deprivation of basic human needs … [or] deprive
inmates of the minimal civilized measure of life’s necessities.” Rhodes v. Chapman,
452 U.S. 337, 347 (1981). “[R]estrictive and even harsh” conditions are “part of the
penalty that criminal offenders pay for their offenses.” Id. Moreover, to prevail under
the Eighth Amendment, an inmate must also show that officials inflicted these
conditions deliberately or recklessly. See Townsend v. Fuchs, 522 F.3d 765, 773 (7th Cir.
2008). The district court erred in rejecting Reed’s triple-celling claims because it applied
the Eighth Amendment to it without resolving when Reed’s status changed from
detainee to prisoner.

       Additional factual questions preclude summary judgment on Reed’s triple-
celling claim, even for the time that Reed was a convicted prisoner and covered by the
Eighth Amendment. The district court ruled that the Eighth Amendment was not
violated, in part because it interpreted Rhodes, which approved double-celling, as not
mandating any minimum amount of square footage. But in at least four respects the
conditions in Rhodes (a “top-flight, first class facility,” 452 U.S. at 341) were materially
different from the conditions for which Reed has supplied evidence in the record.

       The first factual question is space. Two double-celled prisoners in Rhodes shared
63 square feet, giving them 31.5 square feet per inmate, see 452 U.S. at 341. This is
appreciably more than the 24.6 square feet per inmate that Reed received, which ignores
the space already occupied by the cell’s furnishings. That factual difference may be
constitutionally significant. See French v. Owens, 777 F.2d 1250, 1252 (7th Cir. 1985)
(doubling celling of prisons in cells with 24 square feet per prisoner violated Eighth
Amendment); Smith v. Fairman, 690 F.2d 122, 123, 125 (1982) (Eighth Amendment claim
failed when inmates had 27.5 to 32.5 square feet each).

       The second factual difference is time out of the cell. Most of the inmates in Rhodes
“had the choice of spending much of their waking hours outside their cells, in the
dayrooms, school, workshops, library, visits, meals, or showers,” 452 U.S. at 341. By
contrast, the defendants concede that Reed was allowed only 4 hours out of his cell
daily. And at least one circuit has ruled that even double-celling pretrial detainees for
more than 15 days violates the Fourteenth Amendment. See Lareau v. Manson, 651 F.2d
96, 105 (2d Cir. 1981). Reed spent 51 nonconsecutive days triple-celled.

        Third, the cells in Rhodes “were substantially free of offensive odor,” 452 U.S.
at 342, while Reed provided evidence that his cells were never properly cleaned and
No. 18-2313                                                                           Page 5

caused him to itch. In entering summary judgment, the district court relied on the
defendant’s evidence of the air quality and overall cleanliness of the facility. But given
the time that Reed spent confined within his cell, and his evidence of that cell’s filth and
the ineffectiveness of the cleaning solvents, he has presented a triable question whether
he suffered a “serious deprivation of basic human needs.” Id. at 347.

        The fourth factual question is the defendants’ state of mind—whether they
inflicted these conditions deliberately or recklessly—an element of an Eighth
Amendment violation. See Townsend, 522 F.3d at 773. The district court said that there is
“no evidence the defendants[‘] possessed a reckless state of mind.” But Reed has
presented evidence that the defendants did nothing to help him even after he notified
them about the ill effects that triple-celling had on his health. Such evidence is sufficient
to withstand defendants’ summary-judgment motion. See id. at 774 (prisoner’s
testimony about his unanswered complaints of harmful conditions was sufficient to
survive summary judgment).

         Reed next argues that the district court erred when it dismissed at screening his
claims about unhealthy food and did not allow him to amend his complaint to add the
jail’s nutritionist. Again, because the district court analyzed this claim under only the
Eighth Amendment, it dismissed this claim prematurely. To the extent that Reed was a
detainee, he has adequately alleged that the diet was punitive and therefore
inconsistent with the Fourteenth Amendment. See Bell, 441 U.S. at 538. He alleged that
the jail officials scoffed that “if [he] did not like [the food],” he should not have come to
jail, a comment that suggests that they intended the diet to punish him. Reed also
alleges that his confinement to a crowded cell for 20 hours a day aggravated the effects
of the poor diet. The court needed to assess together the joint effects of these conditions.
See French, 777 F.2d at 1252 (“totality of conditions of confinement” includes
“unwholesome food”). Finally, even under the Eighth Amendment standard, the
allegation that Reed complained to no avail about the effects of the unhealthy food on
his health is sufficient to state a claim that officials “kn[ew] of and disregard[ed] an
excessive risk to [Reed’s] health.” See Farmer v. Brennan, 511 U.S. 825, 837 (1994); Perez
v. Fenoglio, 792 F.3d 768, 781 (7th Cir. 2015). Thus, dismissal was improper. See Wilson,
830 F.3d at 467. So too was the district court’s refusal to allow Reed to add the jail’s
nutritionist as a defendant—the only reason it gave for denying this motion was its
view that the unhealthy-food claim was not viable.

    That brings us to Reed’s challenge to the entry of summary judgment on his First
Amendment retaliation claim, in which he contends that Officer Miller discarded his
No. 18-2313                                                                              Page 6

legal papers because Reed threatened to sue about jail conditions. Here we agree with
the district court. Reed needed to furnish evidence that would allow a jury to find that:
(1) his threat is protected by the First Amendment; (2) he suffered a deprivation that
would likely deter First Amendment speech; and (3) his threat was “at least a
motivating factor” for the Miller’s response. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir.
2009) (quoting Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006)). We have not ruled
that threatening to file a lawsuit is protected activity. See id. at 555. But even if it is, Reed
has not offered sufficient evidence that his threat motivated an adverse response.
Miller’s statement that “we don’t care” if Reed sued does not show animosity—at most
it shows indifference. And the suspicious timing of Reed’s bag going missing after his
move to state prison is insufficient because “suspicious timing will ‘rarely be sufficient
in and of itself to create a triable issue.’” Kidwell v. Eisenhauer, 679 F.3d 957, 966 (7th Cir.
2012) (quoting Stone v. Cty of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir.
2002)). Although Reed saw someone in the parking garage holding a bag similar to his,
he never saw his bag leave the van, so a jury would have to speculate about where his
bag went, and speculation is not a rational inference, see Skiba v. Ill. Cent. R.R., 884 F.3d
708, 721 (7th Cir. 2018); Bass v. Joliet Pub. Sch. Dist. No. 86, 746 F.3d 835, 841 (7th Cir.
2014). Thus, this claim was properly decided at summary judgment.

         One final matter. Reed argues that the court erred in dismissing his claim that the
jail officials were deliberately indifferent to the medical problem of his itching face. But
Reed’s complaint does not raise a stand-alone claim of medical indifference, and in any
case we have already addressed it in the context of conditions of confinement.

       We AFFIRM in part, VACATE in part, and REMAND to the district court Reed’s
claims about triple-celling and unhealthy jail food. This district court should recruit
counsel for Reed on those claims.
