Opinion
03 C 50341
September 29, 2003
MEMORANDUM OPINION AND ORDER
The court finds that plaintiff, Van Douglass Richardson, a detainee confined at Winnebago County Jail, is unable to prepay the filing fee. The court grants plaintiff's motion to proceed in forma pauperis and assesses an initial partial filing fee of $3.13 pursuant to 28 U.S.C. § 1915(b)(1). The trust fund officer at plaintiff's current place of incarceration is ordered to collect, when funds exist, the partial filing fee from plaintiff's trust fund account and pay it directly to the clerk of court. Thereafter, the trust fund officer at the correctional facility where plaintiff is confined is directed to collect monthly payments from plaintiff's trust fund account in the amount of 20% of the preceding month's income credited to the account. Monthly payments collected from plaintiff's trust fund account shall be forwarded to the clerk of court each time the account balance exceeds $10 until the full $150 filing fee is paid. Separate deductions and payments shall be made with respect to each action or appeal filed by plaintiff. All payments shall be sent to the Clerk, United States District Court, 219 S. Dearborn St., Chicago, IL 60604, attn: Fiscal Dept., and shall clearly identify plaintiff's name and the case number assigned to this action.
Under 28 U.S.C. § 1915(e)(2), the court is directed to dismiss a suit brought in forma pauperis at any time if the court determines that it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. Richardson complains that the toilets are on automatic timers, and therefore smell bad and attract gnats and bugs, flush only every 20 minutes, and are otherwise dry; that there are gnats and roaches in his cell, that he could not obtain cleaning supplies that he has had to sleep on the floor, presumably on a mattress for periods of time; that he developed a rash, and finally that the showers are on timers and only run for five minutes. Additionally, Plaintiff raises issues with disciplinary due process; further, he alleges verbal abuse by guards, such as that "if people want to kill you that's your tough luck and you should stay out of jail, " Plaintiff did not want to go to another tier because he said there were threats on his life. Another inmate accidentally jumped on top of him when he was sleeping on the floor, and another inmate urinated on his arm. He was placed in observation and was on a suicide watch; he cannot afford to keep paying $15 to see the doctor about his back; and generally he complains again about the conditions in his cell. Plaintiff is a pretrial detainee in the Winnebago County Jail; therefore, his claims regarding the conditions of his confinement are analyzed under the Due Process Clause of the Fourteenth Amendment, rather than the Eighth Amendment. See Tesch v. County of Green Lake, 157 F.3d 465, 473 (7th Cir. 1998), citing Bell V Wolfish, 441 U.S. 520, 535 n. 16 (1979). The standard for determining punishment is similar whether considered in the context of the Due Process Clause or the Eighth Amendment. Salazar v. City of Chicago, 940 F.2d 233, 239-240 (7th Cir. 1991). Punishment in the constitutional sense requires allegations of extreme deprivations over an extended period of time. Hudson v. McMillian, 503 U.S. 1, 9 (1992), Bell v. Wolfish, 441 U.S. at 542, Only those deprivations denying the minimal civilized measure of life's necessities are sufficiently grave to form the basis of an Eighth Amendment violation. Wilson v. Seiter, 501 U.S. 294, 298 (1991). Overcrowded conditions, including sleeping on a mattress on the floor, having automated toilets and showers, having gnats or other bugs around the living units, while regrettable, nevertheless do not constitute punishment in the constitutional sense. He states that he had a back problem because another inmate jumped on him, but not that any defendant caused his injury. He fails to allege that any official at Winnebago County Jail was deliberately indifferent to or intended to subject him to the allegedly unconstitutional conditions at the Jail. See Farmer v. Brennan, 511 U.S. 825, 837 (1994). Plaintiff has failed to show either that the condition was an extreme deprivation, or that he was harmed by the conditions, or that the jail officials acted with deliberate indifference to his basic human needs, Wilson v. Seiter, 501 U.S. at 298-302 (1991).
Plaintiff raises two due process claims for which he lost privileges but not good time-that he was in segregation for 8 days before being given a written report, and initially he asked to call witnesses but was told that this was "unnecessary". He fails to allege that he did in fact ask to call anyone after he was told this. Due process requires, inter alia, the right to call witnesses and to present documentary evidence, when to do so will not unduly jeopardize institutional safety or correctional goals. Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974); Cain v. Lane, 857 F.2d 1139, 1145 (7th Cir. 1988). He does not state a claim for violation of due process. See Rapier v. Harris, 172 F.3d 999, 1004 (7th Cir. 1999), citing Whitford v. Boglino, 63 F.3d 527, 531 n. 4 (7th Cir. 1995). Finally, the claim that the officer squeezed and pulled his arm to take him to the "observation" cell, without more, is de minimis injury and fails to state a claim. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) Likewise, the claim for verbal harassment by the guards also fails. DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000).
This suit is accordingly dismissed for failure to state a claim upon which relief may be granted.
JUGMENT IN A CIVIL CASE
Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury rendered its verdict.
Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS HEREBY ORDERED AND ADJUDGED that plaintiff's motion for leave to file in forma pauperis is granted. The complaint is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim, terminating case. Any other pending motions are denied as moot. The trust fund officer at plaintiff's current place of incarceration is ordered to make deductions from plaintiff's account and payments to the clerk of court as stated in the minute order of September 29, 2003. A copy of this order shall be sent to the trust fund officer at Winnebago County Jail. This dismissal counts as one of plaintiff s three allotted dismissals under 28 U.S.C. § 1915(g).