ALBERT LANDFAIR, Plaintiff, v. MICHAEL SHEAHAN, et al., Defendants.



Case No. 94 C 1336



UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION



878 F. Supp. 1106; 1995 U.S. Dist. LEXIS 2405



February 22, 1995, Decided

February 28, 1995, DOCKETED













COUNSEL: [**1] Albert Landfair, plaintiff, [PRO SE], Western - WST, Western Illinois Correctional Center, Mt. Sterling, IL.


For MICHAEL L SHEAHAN, J W FAIRMAN, ERNESTO VELASCO, MRS FLOOD, Paramedic, OFFICER HAUSER, defendants: Patrick Malone Blanchard, State's Attorney of Cook County, Chicago, IL. Terry L. McDonald, Cook County State's Attorney, Chicago, IL.



JUDGES: MARVIN E. ASPEN, United States District Judge



OPINIONBY: MARVIN E. ASPEN



OPINION:

[*1109] MEMORANDUM OPINION AND ORDER


MARVIN E. ASPEN, District Judge:

Plaintiff Albert Landfair brings this pro se complaint under 42 U.S.C. § 1983 against Michael Sheahan, Sheriff of Cook County, J.W. Fairman, Executive Director of the Cook County Department of Corrections, Ernesto Velasco, Superintendent of Cook County Jail, Officer Yvette Houser and Paramedic Marla Flood (collectively "Defendants"). Defendants have moved to dismiss the complaint, and for the reasons set forth below their motion is granted in part and denied in part.

I. Background

Landfair was a pretrial detainee at the Cook County Jail ("CCJ") in 1993-94. He claims in his original and amended complaint that various conditions at the CCJ were so atrocious as to violate his constitutional rights. First, he claims that although his tier was designed for only forty persons, as many as ninety-five inmates have been housed there at one time. Such crowding has led authorities to place up to three inmates into a cell, and forced Landfair to sleep on the floor. Plaintiff also asserts that CCJ officials have failed to provide [**2] "the minimum amount of medical care, towels, toilet paper, toothpaste, toothbrush or a means to even wash the soiled or smelly clothing" he is given to wear, presumably because of the crowded conditions at CCJ.



n1 As Defendant's point out in their motion to dismiss, it is unclear whether plaintiff simply viewed these conditions or was actually forced to sleep on the floor. Nonetheless, for purposes of this motion we will assume that he slept on the floor.


[*1110] Second, Landfair contends that the jail shower drains were clogged for much of the time he was there, causing him to develop athlete's foot. He also alleges that only three of the five showers on the tier were operational. These problems were known to jail officials, Landfair contends, and the contractors hired to perform repairs were either incompetent or indolent.

Third, plaintiff alleges that Paramedic Flood refused to provide him with a prescribed foot soak medication, as well as aspirin or cold tablets. Also with regard to defendant Flood, plaintiff complains [**3] that on two occasions his prescription contained the wrong date and one other time it did not contain a physician's signature. n2



n2 Plaintiff alleges that he reported these problems in a December 1993 grievance report to Superintendent Velasco, but received no reply.


Fourth, plaintiff complains that the food served at the CCJ is unsanitary, and that the restroom and dayroom of his tier contained exposed electrical wires. However, Landfair admits that the wires were repaired in May 1994.

Fifth, he claims that defendant Houser took revenge on him for complaining about her failure to allow a paramedic to enter the tier by (1) restricting television viewing, (2) not turning the showers on, (3) restricting phone privileges, and (4) "shaking-down" all the inmates, and informing them that Landfair's complaint was the reason for this treatment. Plaintiff also complains that he was the last person in his tier to be served a meal, and he was prevented from receiving visitors or shopping at the commissary during the week [**4] prior to his transfer to the Joliet Correctional Center in May 1994, all as part of his punishment for filing the grievance. n3 He seeks both injunctive and monetary relief for these alleged violations.



n3 Plaintiff also alleges that the conditions of the jail were improved during inspections by the John Howard Association. We fail to understand how an increase in the amenities and services at the CCJ can constitute a violation of plaintiff's due process rights, and so we decline to address these allegations.


Defendants have moved to dismiss Landfair's complaint pursuant to Rule 12(b)(6). Plaintiff has responded with a brief in opposition and an affidavit reaffirming the allegations of his complaint. Believing that this affidavit transforms defendants' motion into one for summary judgment, Fed. R. Civ. P. 12(b), n4 plaintiff has also moved under Rule 56(f) to "stay the proceedings until discovery can be conducted.". However, because defendants' motion attacks the legal sufficiency of plaintiff's complaint we need [**5] not consider his affidavit in deciding that issue. Rather, in keeping with the spirit of Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), we will consider his pleadings amended by the additional allegations in his affidavit. Consequently, we deny plaintiff's Rule 56(f) motion and consider the merits of defendants' motion.



n4 The relevant portion of Rule 12(b) states:

If, on a motion asserting the defense numbered (6) to dismiss for failure to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56.




II. Discussion

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) should not be granted "unless it appears beyond doubt that the [**6] plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Johnson v. Martin, 943 F.2d 15, 16 (7th Cir. 1991). At this stage in the litigation, we take plaintiff's version of the facts alleged in the complaint to be true and construe all reasonable inferences in his favor. Bane v. Ferguson, 890 F.2d 11, 13 (7th Cir. 1989). While complaints drafted by pro se litigants are not held to the same standards as those written by practicing attorneys, Kelley v. McGinnis, 899 F.2d 612, 616 n.8 (7th Cir. 1990), complaints based on unsupported conclusions of fact and conclusions of law are not sufficient to withstand a motion to dismiss. Cushing v. Chicago, 3 F.3d 1156, 1160-61 n.5 [*1111] (7th Cir. 1993); Watters v. Harris, 656 F.2d 234, 240 (7th Cir. 1980).

Conditions of confinement claims brought by pretrial detainees are evaluated under the Due Process Clause of the Fourteenth [**7] Amendment, which protects against the imposition of "punishment" prior to an adjudication of guilt. Bell v. Wolfish, 441 U.S. 520, 535, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). Analysis of a pretrial detainee's claims are two-pronged: (1) prison officials must act with deliberate indifference--intentional or with criminally reckless conduct--in order for the subjective component to be satisfied, Salazar v. Chicago, 940 F.2d 233, 237-39 (7th Cir. 1991), and (2) the alleged deprivations must be sufficiently serious to offend the objective component of the Due Process Clause. Hines v. Sheahan, 845 F. Supp. 1265, 1267 (N.D. Ill. 1994); see also Wilson v. Seiter, 501 U.S. 294, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991). With regard to conditions of confinement claims, the objective prong is essentially the same as the inquiry undertaken in Eighth Amendment cases, since both sections require administrators to provide at least the minimal civilized measure of life's necessities. See Rhodes v. Chapman, 452 U.S. 337, 347, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981). [**8]

A. Subjective Component

Although plaintiff does not indicate whether he brings suit against Defendants in their individual or official capacities, we will evaluate his claims under both theories. With regard to plaintiff's official capacity claims, plaintiff must allege that the purported deprivations resulted from an official policy or custom of Cook County. See Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Nowhere in his complaint does Landfair contend that Cook County maintains a policy or custom which caused the allegedly unconstitutional conditions. Rather, he attributes all of his problems at the CCJ to acts of the particular defendants. However, given the extremely deferential pleading standard for municipal liability outlined in Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 122 L. Ed. 2d 517, 113 S. Ct. 1160, 1163 (1993), and the reasonable inference in Landfair's complaint that the CCJ enforced a custom or policy of providing inadequate supplies and housing, see Watson v. Sheahan, [**9] No. 93 C 1871, 1994 U.S. Dist LEXIS 3249, at *10 (N.D. Ill. March 18, 1994), we cannot say plaintiff has failed to allege official capacity claims against the defendants. While we express serious doubts as to Landfair's ability to prevail on any official capacity claim, we allow him to go forward at this point. See Leatherman, 113 S. Ct. at 1163 (Absent amendment of Rules 8 and 9, "federal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims sooner rather than later.")

With regard to his individual capacity claims, plaintiff must allege that each defendant caused or participated in the conduct at issue, Cygnar v. Chicago, 865 F.2d 827, 847 (7th Cir. 1989), and that such action was taken intentionally or with criminal recklessness. Salazar, 940 F.2d at 239. With regard to defendant Michael Sheahan, plaintiff simply asserts that as Sheriff of Cook County he should be aware of the conditions at CCJ. While in most instances this conclusory statement would be insufficient to ground a claim of individual [**10] liability, plaintiff's pro se status forces us to give him more leeway. It is reasonable to infer that as Sheriff of Cook County, Sheahan was aware of the overcrowding at CCJ and the problems which accompanied it. Moreover, defendant Sheahan is in a better position than Landfair to identify the exact official who would be directly responsible for the specific conditions at issue. While plaintiff must still demonstrate Sheahan's individual involvement in order to prevail at trial, at this stage we find that he has sufficiently stated a claim against Sheahan. Watson v. Sheahan, No. 93 C 1871, 1994 U.S. Dist. LEXIS 3249, at *6-8 (N.D. Ill. March 18, 1994).

Plaintiff has also satisfactorily plead the subjective element of his claims as to the other Defendants. Landfair argues that Fairman and Velasco were aware of the conditions, [*1112] since he submitted grievance reports to them and they visited his wing periodically. Finally, Paramedic Flood and Officer Houser are alleged to have intentionally taken specific action against plaintiff.

B. Objective Component

While prisons are prohibited from denying inmates the minimal necessities of life, they need not provide [**11] a comfortable environment in which to live. Rhodes v. Chapman, 452 U.S. 337, 347, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981); Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988) (prisoners "cannot expect the amenities, conveniences and services of a good hotel"). Rather, extreme deprivations must be alleged in order to make out a conditions of confinement claim, and claims of inadequate medical care only arise where there has been deliberate indifference to "serious" medical needs. Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 1000, 117 L. Ed. 2d 156 (1992). We address Landfair's allegations in seriatim.

1. Sleeping Conditions

Reading Landfair's complaint generously, he contends that he was housed in cells with two other inmates and forced to sleep on a mattress on the floor. Generally, claims by inmates that they are forced to sleep on the floor are dismissed at this stage, since "'the Constitution is indifferent as to whether the mattress a detainee sleeps on is on the floor or in a bed.'" Chavis v. Fairman, 1994 U.S. Dist. LEXIS 1850, No. 92 C 7490, [**12] 1994 WL 55719, at *4 (N.D. Ill. Feb. 22, 1994) (quoting Lynch v. Sheahan, 1992 U.S. Dist. LEXIS 7749, 92 C 1087, 1992 WL 132525 (N.D. Ill. May 29, 1992)); Hines v. Sheahan, 845 F. Supp. 1265, 1269 (N.D. Ill. 1994). However, in his original complaint Landfair contends that the sanitary conditions at the CCJ coupled with the sleeping arrangements led him to contract meningitis. While we express serious doubts as to the veracity of Landfair's allegation, contracting such a serious disease would clearly satisfy the objective prong of Wilson v. Seiter. Accordingly, we cannot dismiss his claim at this stage.

2. Inadequate Supplies

Plaintiff bemoans "the lack of cleaning supplies, the lack of clean clothing changes. . ., the lack of clean linen . . . . [and the failure to provide] the minimum amount of medical care, towels, toilet paper, toothpaste, toothbrush or a means to even wash the soiled or smelly clothing that we are forced to wear." Amended Complaint, at 5(1). Although plaintiff's allegations are sparse and lack any factual detail, we cannot conclude that they are so insufficient as to fall below the liberal pleading requirements of pro se prisoners. To be sure, simply [**13] because plaintiff did not receive what he believes to be the "minimum" amount of supplies does not render his confinement unconstitutional. See Harris v. [*1113] Fleming, 839 F.2d 1232 (7th Cir. 1988) (failure to provide toilet paper for five days, and failure to provide soap, toothbrush and toothpaste for ten days not unconstitutional condition of confinement). However, because Landfair's complaint does not indicate how long he went without such supplies, it is possible that the deficiency continued for such an extended period of time as to warrant constitutional recognition. While Landfair eventually may be unable to prove that the conditions at the CCJ amounted to an "extreme deprivation," we cannot say at this point that he will be unable to present any set of facts entitling him to relief on this claim. See Watson v. Sheahan, No. 93 C 1871, 1994 U.S. Dist. LEXIS 3249, at *14-16 (N.D. Ill. March 18, 1994). Accordingly, Defendants' motion to dismiss these claims is denied.

3. Shower Conditions

Plaintiff next complains that deficiencies with the plumbing in the showers at the CCJ caused him to develop athlete's foot. [**14] n5 While no doubt uncomfortable, athlete's foot cannot be considered an injury serious enough to satisfy the objective component of Wilson v. Seiter. Cf. Harris v. Fleming, 839 F.2d 1232 (7th Cir. 1988) (failure to provide toilet paper for five days, and failure to provide soap, toothbrush and toothpaste for ten days not unconstitutional condition of confinement). Indeed, we would be hard pressed to characterize plaintiff's condition as amounting to an "extreme deprivation." Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 1000, 117 L. Ed. 2d 156 (1992).



n5 Landfair also contends that the contractors hired by defendants to conduct repairs at the CCJ did not perform quality work. This claim must fail, since he does allege that this conduct caused him any injury. See O'Shea v. Littleton, 414 U.S. 488, 493-94, 38 L. Ed. 2d 674, 94 S. Ct. 669 (1974) (plaintiff must allege injury or immediate danger of direct injury).


[**15]

Landfair also contends that only three showers were available for the entire wing. While this circumstance is unfortunate, we cannot say that it crosses the line of unconstitutionality. Indeed, this Circuit has held that providing prisoners only one shower per week does not offend the Constitution. Davenport v. DeRobertis, 844 F.2d 1310, 1316 (7th Cir.), cert. denied, 488 U.S. 908, 102 L. Ed. 2d 248, 109 S. Ct. 260 (1988). Absent any indication that the CCJ fell below this standard, Landfair's claim must be dismissed.

4. Medical Treatment

Landfair claims that defendant Flood refused to provide him with his prescribed foot soak medicine, aspirin or cold tablets. Plaintiff also claims that on two occasions his prescription was incorrectly dated, and at one other time it did not contain a physician's signature. In order to raise a constitutional challenge to the medical treatment received at the CCJ, plaintiff must demonstrate that Defendants were deliberately indifferent to his serious medical needs. Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976); [**16] Salazar v. Chicago, 940 F.2d 233, 237-38 (7th Cir. 1991). Although plaintiff has properly alleged deliberate indifference, his complained of injury--athlete's foot--did not present a risk of "serious injury or death." See Martin v. Tyson, 845 F.2d 1451, 1457-58 (7th Cir.) (delay in treating tooth ache and ear infection not sufficiently serious), cert. denied, 488 U.S. 863, 102 L. Ed. 2d 133, 109 S. Ct. 162 (1988). Nor does he contend that Defendants' actions aggravated his condition to such a degree as to risk serious injury or death.

So too with his contention that he received misdated or unsigned prescriptions. Aside from the strong possibility that such conduct would only amount to negligence, see Goka v. Bobbitt, 862 F.2d 646, 650 (7th Cir. 1988) (negligence alone insufficient to state a claim), there is no indication that these actions satisfied the objective component of Wilson v. Seiter. Because Landfair's allegations about his medical treatment do not indicate that he was at risk of incurring serious injuries or death, [**17] Defendants' motion to dismiss these claims is granted.

5. Food

Plaintiff asserts that food delivery at the CCJ is unsanitary, since spillage remains on the food carts for several days and foreign objects are in the food. Prisons are required to "provide nutritionally adequate food that is prepared and served under conditions which do not present an immediate danger to the health and well being of the inmates who consume it." French v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1985), cert. denied, 479 U.S. 817, 93 L. Ed. 2d 32, 107 S. Ct. 77 (1986). However, plaintiff's complaint does not indicate that the conditions of the food service "present[ed] an immediate danger to [his] health and well being." Absent any indication that the CCJ food presented such a threat, Landfair cannot maintain his claim. See Chavis, 1994 U.S. Dist. LEXIS 1850, 1994 WL 55719, at *3.

6. Exposed Electrical Wires

Plaintiff asserts that live electrical wires were exposed in the restroom and dayroom of his tier. However, he also admits that these wires were repaired in May 1994. Absent any indication that these wires caused plaintiff serious injury, [**18] or presented a imminent risk of such injury, the fact that wires were merely exposed does not raise a constitutional claim. Accordingly, Defendants' motion to dismiss this claim is granted.

7. Retaliation by Officer Houser

Landfair maintains that after he filed a grievance report against Officer Houser for not allowing a paramedic to visit his wing, she retaliated against him by revoking various privileges and shaking-down the residents [*1114] of the wing, and informing them that Landfair was to blame. Defendants contend that even if such retaliation did occur, plaintiff has failed to allege the deprivation of a protected liberty or property interest. See Parratt v. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981). Such an interest may only arise out of the Due Process Clause itself or state law. Hewitt v. Helms, 459 U.S. 460, 466, 74 L. Ed. 2d 675, 103 S. Ct. 864 (1983). While it is true that pre-trial detainees may not be punished prior to an adjudication of guilt, Salazar v. Chicago, 940 F.2d 233, 241-42 (7th Cir. 1991), [**19] not all acts taken against them violate the Constitution. Rather, pre-trial detainees must risk sufficiently serious injury in order to invoke the Constitution.

Landfair does not present us with the kind of allegations that implicate the Due Process Clause. His claim that defendant Houser restricted television and telephone privileges on the wing does not rise to the level of serious punishment, nor do his claims that he was prevented from receiving visitors or shopping before being transferred to Joliet. While his claim that his life was placed in danger by virtue of defendant Houser's statements to the other inmates might rise to the level of a violation, there is no allegation that he actually suffered an injury or that an attack was imminent. Without more, plaintiff cannot bring a § 1983 claim based on these allegation, and therefore we grant Defendants' motion to dismiss.

C. Equitable Claims

Finally, we address plaintiff's request for equitable relief. Because his claims arise out of his pretrial detention at the CCJ, Landfair is bound by the consent decree entered in Duran v. Elrod, No. 74 C 2949 (N.D. Ill. April 9, 1982), despite the fact that he was not at the facility [**20] when the decree was entered. Martin v. Davies, 917 F.2d 336, 339 (7th Cir. 1990), cert. denied, 501 U.S. 1208, 115 L. Ed. 2d 978, 111 S. Ct. 2805 (1991). Equitable claims arising out of violations of the consent decree must be presented through a contempt proceeding before the supervising court. Martin, 917 F.2d at 339. Accordingly, Landfair's claims for equitable relief must be dismissed. n6



n6 In any event, the fact that Landfair has since been transferred from the CCJ to the Illinois Department of Corrections facility at Joliet effectively moots his claim. Martin, 917 F.2d at 339.


III. Conclusion

For the reasons state above, Defendants' motion is granted in part and denied in part. It is so ordered.

MARVIN E. ASPEN

United States District Judge


Dated 2/22/95

FRED D. WILSON, Plaintiff, v. COOK COUNTY BOARD OF COMMISSIONERS, MICHAEL F. SHEAHAN, JAMES W. FAIRMAN JR., and JAMES M. CAREY, Defendants.



No. 94 C 551



UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION



878 F. Supp. 1163; 1995 U.S. Dist. LEXIS 3278



March 14, 1995, Decided

March 15, 1995, DOCKETED













COUNSEL: [**1] For FRED D WILSON, plaintiff: Peter F. Zullow, Cook Associates, Inc., Chicago, IL. Fred D Wilson, plaintiff, [PRO SE], Joliet - Jol, Joliet Correctional Center, Joliet, IL.


For COOK COUNTY BOARD OF COMMISSIONERS, MICHAEL F SHEAHAN, JAMES W FAIRMAN, JR, JAMES M CAREY, et al, defendants: Terry L. McDonald, Douglas Staser Steffenson, Cook County State's Attorney, Chicago, IL.



JUDGES: Robert W. Gettleman, United States District Judge



OPINIONBY: Robert W. Gettleman



OPINION:

[*1165] MEMORANDUM OPINION AND ORDER

Introduction

Twenty-nine years ago, Dr. Karl Menninger described the conditions endured by pretrial detainees in this nation's jails and lockups as "miserable, overcrowded, crime-and-disease-breeding."n1 Among the jails Dr. Menninger examined was the Cook County Jail (the "Jail," the subject of the instant case), which he toured with the then executive director of the John Howard Association. The superintendent of this institution conceded "that deviate sex practices, beating of inmates by other inmates, smuggling of contraband, and other vicious practices were routine in the Jail."n2 Dr. Menninger quoted the Commissioner of New York's Riker's Island Prison as saying, "We shouldn't treat cattle the way we have to treat our inmates."n3



n1 Menninger, The Crime of Punishment (The Viking Press, 1966); p. 45.

n2 Id., at 40.

n3 Id., at 38.


In 1974, a class action [**2] was filed in this Court attacking the conditions at Cook County Jail. Duran v. Elrod, 74 C 2949 ("Duran").n4 Eight years later, a consent decree was entered in Duran which addressed all areas of food service, sanitation, recreation, access to the law library, overcrowding, and other conditions. In 1980, in connection with the enforcement of the consent decree, Judge Shadur appointed the John Howard Association to monitor conditions at the Jail and compliance with the decree. In 1990, the Seventh Circuit held that all claims for equitable relief were subsumed by the consent decree in Duran. Martin v. Davies, 917 F.2d 336, 339 (7th Cir. 1990). Thus, only claims for money damages resulting from conditions at the Jail may be entertained outside Duran.



n4 The current caption is Duran v. Sheahan, the defendant's name having been changed to identify the current Sheriff of Cook County.


As demonstrated by the instant case and many others like it, neither Duran nor the passage of time has lessened [**3] the number or volume of complaints by inmates of the Cook County Jail. In a report issued last month (the eleventh so far),n5 the John Howard Association reported that, despite a significant increase in the size of the Jail and increased use of pretrial release procedures, the Jail continues to be grossly overcrowded, with a 1994 daily average of 1455 inmates sleeping on the floor.


"CCDOC [Cook County Department of Corrections, which administers the Jail] has entered the sixth consecutive year during which overcrowding has been a daily phenomenon. The most recent occasion [*1166] when there was no evidence of inmates sleeping on the floors in the Jail was December 30, 1988."


(Id., at 4.)



n5 "Court's Monitoring Report for Duran v. Sheahan, et al., 74 C 2949; Jail Conditions at the Cook County Department of Corrections and Compliance With the Consent Decree" (John Howard Association, February 1, 1995). This report was submitted to Hon. George M. Marovich, the district judge currently assigned to the Duran case.


[**4]

In its 148 page report, the John Howard Association details both improvement and deterioration at the Jail in areas of environmental health, personal hygiene, food service, staffing, and other conditions. Taking our cue from the Seventh Circuit in Martin and its progeny, this Court will not indulge any further in examining the conditions at the Jail outside of the specific allegations raised by plaintiff in the instant case. It is difficult to be unmindful, however, of the sad fact that despite the best efforts of the Court, its monitor, counsel, and indeed the administrators of the Cook County Jail, Dr. Menninger's remarks in 1966 are at least as valid today as they were then.

In this historical and precedential context, the court will now examine plaintiff Fred D. Wilson's complaint and the current motion by defendants to dismiss that complaint.

The Pleadings

Plaintiff Fred D. Wilson, who at the time he filed his complaint on January 27, 1994, had been incarcerated at the Jail since December 12, 1991,n6 brings this pro se action for damages pursuant to 42 U.S.C. § 1983 against the Cook County Board of Commissioners (the "Board"), Michael Sheahan, Cook County Sheriff, [**5] James W. Fairman Jr., Director of the Cook County Jail, and James M. Carey, Superintendent of Division 6 of the Jail (together, the "Individual Defendants"). Wilson, a pretrial detainee at the Jail, alleges that his conditions of confinement are unconstitutional under the Fourteenth Amendment. He has presented a litany of alleged constitutional violations by defendants: (1) overcrowding; (2) inadequate staffing; (3) inadequate food supply and service; (4) inadequate personal hygiene; (5) inadequate medical treatment; (6) inadequate opportunity for exercise; and (7) inadequate grievance procedures. He seeks $ 500,000.00 in compensatory damages and $ 1,000,000.00 in punitive damages.



n6 Plaintiff does not explain why, as a pretrial detainee, he had been in the Jail more than two years. He is currently incarcerated at Stateville Correctional Center at Joliet, Illinois.


The Individual Defendants have moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), alleging that Wilson has failed to state a claim upon which [**6] relief can be granted because, even if true, Wilson's allegations do not amount to constitutional violations. The Board has also moved to dismiss, claiming that it cannot be held liable under section 1983 for conduct of the Sheriff and his departments.

Standard of Review

In ruling on a motion to dismiss, the court must presume all of the well-pleaded allegations of the complaint to be true, Miree v. DeKalb County, 433 U.S. 25, 97 S. Ct. 2490, 53 L. Ed. 2d 557 (1977), and must view those allegations in the light most favorable to plaintiff. Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1034 (7th Cir., 1987). Dismissal is proper only if it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In the case of a pro se litigant, the complaint will be held to a less stringent standard than pleadings drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972).

Because Wilson is a pretrial detainee, his claims of unconstitutional conditions of confinement are analyzed [**7] under the constitutional guarantee of due process of law. Bell v. Wolfish, 441 U.S. 520, 535, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). Bell was a case of federal confinement, implicating the due process clause of the Fifth Amendment, but its holding has been applied to cases involving state confinement implicating Fourteenth Amendment due process. Anderson v. Gutschenritter, 836 F.2d 346, 348-49 (7th Cir. 1988).

Under Bell the proper inquiry under a challenge to the conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without [*1167] due process of law is whether those conditions amount to punishment of the detainee. Id. "[A] detainee may not be punished prior to an adjudication of guilt in accordance with due process of law." 441 U.S. at 535.

Because a pretrial detainee is lawfully detained, however, he may be subjected to the restrictions and conditions of the detention facility so long as those restrictions and conditions do not amount to punishment or otherwise violate the constitution. Id. at 536-37. To determine whether a condition or restriction amounts to punishment in the constitutional sense, [**8] a court:


must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. Absent a showing of an expressed intent to punish on the part of the detention facility officials, that determination in general will turn on whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it]. Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to punishment. Conversely, if a restriction or condition is not reasonably related to a legitimate goal--if it is arbitrary or purposeless--a court permissibly may infer that the purpose of a governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.


Id. at 538-39 (internal quotations in citations omitted).

The Seventh Circuit has looked to Eighth Amendment cases to define the term punishment and the state of mind required to find that a detention facility [**9] official's actions amount to punishment. Under Eighth Amendment analysis, the determination of whether conduct constitutes cruel and unusual punishment involves both a subjective and objective component. A plaintiff must prove both that the defendant acted with deliberate indifference to the plaintiff's reeds (the subjective component), and that the alleged deprivations were sufficiently severe to rise to the level of a constitutional violation (the objective component). Wilson v. Seiter, 501 U.S. 294, 298-302, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991). Deliberate indifference has been equated with criminal recklessness. Farmer v. Brennan, 128 L. Ed. 2d 811, 114 S. Ct. 1970, 1979 (1994). Under this standard "a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health and safety; the official must both be aware of facts on which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Id. at 1979. The Seventh Circuit in Salazar v. City of Chicago, 940 F.2d 233, 238 (7th [**10] Cir. 1991) has adopted this subjective element for Fourteenth Amendment due process claims.

This court is troubled by the inherent difficulties in reconciling Salazar's deliberate indifference standard with the reasonableness standard set forth by the Supreme Court in Bell. The court agrees with Judge Grady's thorough examination of those inherent difficulties in Miller v. Fairman, 872 F. Supp. 498, 1994 WL 735374 (discussion of deliberate indifference standard versus reasonableness standard). Nonetheless, as Judge Grady noted, Salazar is the law in this Circuit and this court is bound to follow it. The court in Salazar was careful to note, however, that it:


did not mean to imply that the Eighth Amendment governs the standard of conduct of a jailer towards a pretrial detainee. It does not because the Eighth Amendment prohibits only cruel and unusual punishment while the Fourteenth Amendment does not allow jailers to punish pretrial detainees at all, no matter how humane or common the punishment might be.


Salazar, 940 F.2d at 239-40. It is the objective component where the two analyses differ and, therefore, the standard under the Fourteenth Amendment remains [**11] whether the pretrial detainee has been punished at all, not [*1168] whether such punishment is so "extreme" as to amount to cruel and unusual. See Miller, 872 F. Supp. 498, 1994 WL at *11 (objective prong analysis differs).

Finally, in addition to meeting the standard set forth in Bell, as interpreted by the Seventh Circuit, plaintiff must also allege a remedial injury for each of his claims. "Where no injury [is] present, no compensatory damages can be awarded." Memphis Community School Dist. v. Stachura, 477 U.S. 299, 308, 91 L. Ed. 2d 249, 106 S. Ct. 2537 (1986). In Stachura, the Court held that the "abstract value of a constitutional right may not form the basis for section 1983 damages." Id. This court is aware that in Farmer, the Court held that "one does not have to await the consummation of a threatened injury to obtain preventative relief." Farmer, 114 S. Ct. at 1983. Plaintiff here, however, seeks damages for injuries allegedly incurred, not equitable relief.n7



n7 As mentioned above (at 1-2), as a pretrial detainee of the Cook County Jail, plaintiff is covered as a class member under the consent decree in Duran. Under Martin v. Davies, 917 F.2d at 339 (7th Cir. 1990), plaintiffs, such as Wilson, cannot raise claims for equitable relief outside a contempt order brought under the Duran consent decree.


[**12]

After applying these standards to the allegations of plaintiff's complaint, for the reasons set forth below, the court grants both motions to dismiss in part and denies them in part.

COUNTS I, II, VI, VII

At the outset, the Court can quickly dispose of the above counts because they all suffer from the same deficiency; failure to allege a remedial injury. As noted above, the Supreme Court has held that "where no injury was present, no compensatory damages can be awarded." Stachura, 477 U.S. 299, 308, 91 L. Ed. 2d 249, 106 S. Ct. 2537 (1986). Because plaintiff has failed to allege that he has suffered any injury as the result of the allegations contained in these counts, he cannot maintain a claim for compensatory damages.

For example, in Count I plaintiff sets forth the general conditions of overcrowding with which the courts in this district are all too familiar. He alleges that he sleeps on a urine-stained mattress on the floor, and lives in constant noise amid a general population not segregated from what he terms mental patients and AIDS carriers. While the conditions he alleges could at best be described as uncomfortable (as the individual defendants suggest) or at [**13] worst as deplorable (as plaintiff suggests), plaintiff has not alleged an injury as a result of living in these conditions.n8 Accordingly, any relief to which he might be entitled is through the Duran consent decree, not in an action for damages.



n8 In Bell, although the Court held that double-bunking for a limited period of time did not violate the Constitution, it did suggest that subjecting a detainee to "genuine privation and hardship" over a greater period of time might amount to punishment. Bell, 441 U.S. at 542-43. In the instant case, plaintiff alleges that he has been detained at the Jail for over three years. Because he has not alleged an injury resulting from these conditions aside from his back problem discussed in his medical count, he has failed to state a claim based on the general overcrowding.


In Count II, plaintiff alleges that the Jail is inadequately staffed. He has not, however, presented any allegations of how he might have been harmed by this lack of staff. He has alleged [**14] that he has had a problem with one particular guard, but his problem is specific to that individual, and he has alleged no facts to tie this problem to his allegations of inadequate staffing.

In Count VI, plaintiff alleges that he does not get enough exercise, particularly outdoor exercise. He admits, however, that he is not restricted to a cell, and is allowed to go to a day room. Additionally, despite his suggestion that his "muscles are allowed to atrophy," the facts alleged in his complaint relating to his ability to move about belie this general conclusion. Moreover, he has not alleged that he has suffered any muscular pain or problems as a result of this alleged lack of exercise. Accordingly, the court concludes that as pled, Count VI fails to state a claim.

In Count VII, plaintiff alleges that the Jail has an inadequate grievance procedure. Again, because he has not alleged that he [*1169] personally has ever attempted to use the grievance procedure, he cannot allege that he has been harmed by any possible inadequacies. Accordingly, he has not alleged a compensable injury, and has stated a claim for damages.

COUNT IV - PERSONAL HYGIENE

In this count, plaintiff alleges [**15] that bed sheets are not changed regularly, his uniform has not been changed in over a month, and, at the time of his complaint, his towel had not been changed for nineteen months. He alleges that there are only three toilets, three showers, and three sinks for the increased number of detainees currently at the Jail. He further alleges that there is insufficient toilet paper, soap, cleaning materials, and that it is humiliating that he must beg for clean sheets, uniforms and underwear, even though "it is known that the supply room has an adequate amount to pass out."

It is difficult to see how such conditions could be "reasonably related to a legitimate government objective." Bell, 441 U.S. at 538. Thus, this court may infer that the purpose of these restrictive conditions (especially the failure to provide clean sheets and clothing when they are available) is to punish. Moreover, similar conditions have been held to violate the basic human necessity of a minimally hygienic living space amounting to cruel and unusual punishment, in violation of the Eighth Amendment. Jackson v. Duckworth, 955 F.2d 21 (7th Cir. 1992). If such conditions can violate the Eighth Amendment's prohibition [**16] against cruel and unusual punishment, they necessarily would also violate the Fourteenth Amendment's prohibition against any punishment at all.

In addition, plaintiff has alleged that all of the defendants are aware of these conditions, are aware of the potential danger that could result from these conditions, and have deliberately ignored those dangers. Thus, plaintiff has met the subjective component of the Wilson test. Accordingly, the court concludes Count IV that states a claim.

COUNT V - MEDICAL AND MENTAL

In Count V plaintiff has alleged a litany of complaints relating to his medical care. All but two of those complaints can be dismissed because he suffered no injury. For example, he alleges that he tested positive for tuberculosis, was treated, but then never re-tested. He does not, however, allege that he has any symptoms of tuberculosis. He also alleges that he is not separated from "A.I.D.S. carriers" or psychotic detainees and active tuberculosis cases. Again, he has failed to allege how he has been injured as the result of his lack of segregation.

Plaintiff has, however, set forth two factual allegations that do support causes of action. First, he alleges [**17] that the Jail is a closed environment with no open windows, and that the ventilation system is grossly inadequate. As a result he is continuously exposed to environmental tobacco smoke, causing headaches and "nasaipharyneal [sic] irritations" and an inordinate amount of colds. The Seventh Circuit has indicated that adequate ventilation is a fundamental attribute of shelter that correction officials must provide under the Eighth Amendment. See Lewis v. Lane, 816 F.2d 1165, 1171 (7th Cir. 1987). Again, if inadequate ventilation can amount to cruel and unusual punishment under the Eighth Amendment, it would also amount to prohibited punishment under the Fourteenth Amendment.

Additionally, plaintiff has alleged that he has had a laminectomy and that sleeping on the floor aggravates his condition, resulting in greater back pain. He has complained about this problem and requested an extra mattress, but instead has received only an over-the-counter pain medication. Read liberally, this allegation states that defendants have failed to treat adequately a specific injury and, therefore, meets the objective standard under Bell. Again, plaintiff alleges that all defendants are aware [**18] of these conditions and the possibility that they could create an excessive risk to his health and safety, and that defendants have deliberately ignored that risk. Accordingly, the court concludes that plaintiff has stated a claim with respect to the allegations of inadequate [*1170] ventilation and failure to treat his back injury.

COUNT III - FOOD SERVICE

Plaintiff has alleged that he is served cold food on dirty trays. In addition, he claims that he is rarely, if ever, served real meat, getting processed meat instead, which is often spoiled. He further alleges that at times there are roaches crawling over the food trays, and that the whole process is unsanitary and unhealthy. Read liberally, plaintiff has alleged that the prison officials have failed to provide nutritionally adequate food that is prepared and served under conditions which present an immediate danger to the health and welfare of the detainees who consume it. If true, this would amount to cruel and unusual punishment, in violation of the Eighth Amendment. French v. Owens, 777 F.2d 1250, 1255 (7th Cir. 1985), cert. den., 479 U.S. 817, 93 L. Ed. 2d 32, 107 S. Ct. 77 (1986). Obviously, if true, such conditions [**19] are not reasonably related to any legitimate governmental objective, and would violate the Fourteenth Amendment prohibition against punishment.

Finally, plaintiff has alleged that all of the defendants were and are aware of these conditions, and are aware that such conditions create an excessive risk to his health and safety. Accordingly, he has met the subjective component of Wilson.

THE BOARD'S MOTION

In addition to arguing that the alleged conditions do not amount to a constitutional violation, the Board has also moved to dismiss, claiming that it cannot be liable for conduct undertaken by the Cook County Sheriff and his department. While this statement is indeed true, see Thompson v. Duke, 882 F.2d 1180, 1187 (7th Cir. 1989), cert. den., 495 U.S. 929, 109 L. Ed. 2d 496, 110 S. Ct. 2167 (1990), the Board has misinterpreted plaintiff's claims against it. Plaintiff is not claiming that the Board is liable for the actions or inactions of the Sheriff, or anyone else. Plaintiff has alleged that pursuant to state statute the Board must appropriate and provide funds for the necessary, ordinary and contingent costs incurred by the office of the Sheriff in providing [**20] constitutionally required conditions at the Jail. 55 ILCS 5/3-15015. Thus, plaintiff alleges that the Board controls the purse strings and, despite knowledge of the punitive conditions at the Jail, has failed to provide the Sheriff with sufficient funds to alleviate the problems. He has alleged that the Board is deliberately indifferent to the excessive risk created by the conditions, and has failed to provide sufficient funds to eliminate those risks. Viewed liberally, his complaint states a claim against the Board, and cannot be dismissed.

CONCLUSION

For the reasons set forth above, the court grants defendants' motions to dismiss Counts I, II, VI and VII. The court denies the motions to dismiss Counts III, IV, and those portions of V relating to inadequate ventilation and the alleged failure to treat plaintiff's back problems. The court will appoint counsel to represent plaintiff in the prosecution of the viable counts.


ENTER: March 14, 1995

Robert W. Gettleman

United States District Judge