Opinion
No. 98 C 4262
June 22, 2000
MEMORANDUM OPINION AND ORDER
Learon Wade, currently an inmate at Pinckneyville Correctional Center, brings this pro se complaint pursuant to 42 U.S.C. § 1983 regarding his conditions of confinement while he was detained at Cook County Jail. Defendants John Stroger, President of the Cook County Board; Michael Sheahan, Sheriff of Cook County; and L.V. Collier, Superintendent of Division 10 Cook County Jail, have filed a motion for summary judgment. Wade has responded to the motion. Defendant Officer Merlong was dismissed from this action on September 2, 1999, because Wade had not served him within 120 days of the filing of the complaint.
I. Standard of Review
Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The party moving for summary judgment has the initial burden of submitting affidavits and other evidentiary material to show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A genuine issue of material fact exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249 (1986). Once the moving party has sustained the initial burden, the opposing party may not rest upon the mere allegations or denials of the pleadings, but instead must come forward with specific evidence, by affidavits or as otherwise provided in Rule 56, showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324. However, the facts are construed in the light most favorable to the nonmoving party and all inferences are drawn in his favor. Holtz v. J.J.B. Hilliard WL. Lyons, Inc., 185 F.3d 732, 738 (7th Cir. 1999).
II. Facts
In his amended complaint, Wade alleges that he told jail officials that he suffered from scoliosis, a congenital abnormality that caused his spine to curve, and this condition caused him pain if he slept on a hard surface. Nonetheless, he slept on the floor from September 4-11, 1997, and from December 22, 1997, until February 21, 1998. He avers that Officer Merlong told him that all the beds were filled and he had to suffer like everyone else and if he continued complaining, he probably would not get a bed when one became vacant. Wade states men who arrived after him got beds but that he did not. He claims that sleeping on the floor further exacerbated his back problem and it now hurts constantly which it did not before sleeping on the floor.
Wade also claims that it was colder on the floor because of a draft; however, he was not allowed a second blanket. He alleges that the cell was dirty and infested with vermin and that roaches and mice crawled all over him. When the two men who shared the cell with Wade got up during the night to use the bathroom, they stepped on his mattress and periodically leaked urine on his mattress. Wade claims that he was continually sick with colds during this period.
Wade states that he named Stroger because as President of the Cook County Board, he is aware that men are forced into overcrowded cells but has failed to remedy the problem. He named Sheahan because the Sheriff has a policy of putting pretrial detainees wherever they can fit and makes no provision to move detainees to other areas of the jail where a bed may be vacant. He named the Superintendent of Division 10 because he carried out this policy. He named Officer Merlong because he was responsible for Wade's being skipped over when a bed became available.
According to defendants' Statement of Material Facts pursuant to Local Rule 56.1(3), Wade was assigned to Division 10 on December 22, 1997. (Exhibit C, Plaintiff's deposition, p. 6.) Wade's medical records reflect that he never mentioned his scoliosis to the doctors at Cermak Health Facility. (Exhibit D, plaintiff's medical records.)
Wade stated in his deposition that he has suffered from scoliosis since 1981. (Exhibit C, p. 8.) Wade claims he told Officer Malone about his condition. (Exhibit C, p. 8.) He received Motrin for his back condition. (Exhibit C, p. 9.) Before he was incarcerated, he was not under a doctor's care for his condition. (Exhibit C, p. 11.) He never asked to be taken to Cermak Hospital for his condition. (Exhibit C, p. 14.)
Wade never informed John Stroger, Michael Sheahan, or Superintendent Collier at Division 10 of his problem either in person or in a letter. (Exhibit C, pp. 15-16.)
Wade alleges he suffered mental and emotional distress; however, he never sought medical treatment for this condition while at Cook County Jail. (Exhibit C, pp. 16-17.) Wade suffered no out-of-pocket losses due to the alleged conditions. (Exhibit C, pp. 17-18.)
III. Analysis
The Supreme Court has held that to prove a violation of the Eighth Amendment's prohibition against cruel and unusual punishment in regard to an inmate's conditions of confinement, both an objective and a subjective prong must be met. Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). The objective prong asks whether the deprivation was sufficiently serious and looks to the conditions themselves. Id. at 298. The subjective prong is met if a prison official acts with deliberate indifference. Id. at 303.
Only the Due Process Clause of the Fourteenth Amendment is applicable to Wade as a pretrial detainee. See Anderson v. Gutschenritter, 836 F.2d 346, 348-9 (7th Cir. 1988). However, the standard for analyzing a pretrial detainee's Fourteenth Amendment Due Process Claim is identical to the standard employed to judge a convicted inmate's Eighth Amendment cruel and unusual punishment claim. Shelby County Jail Inmates v. Westlake, 798 F.2d 1085, 1094 (7th Cir. 1986).
The second prong of Wilson requires a defendant to have acted with deliberate indifference. As defined in Farmer v. Brennan, 511 U.S. 825, 837 (1994), a prison official acts with deliberate indifference when "the official knows of and disregards an excessive risk to inmate health or safety;" and is both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists and draws the inference. To act with deliberate indifference, jail officials would have to intend for Wade to die or to suffer grievously, or they would have to act indifferently to a known risk that he would die or suffer grievously. See Salazar v. City of Chicago, 940 F.2d 233, 238-39 (7th Cir. 1991) (noting that any act with a state of mind less than intent or criminal recklessness, such as negligence or gross negligence, does not amount to punishment); see also Tesch v. County of Green Lake, 157 F.3d 465, 474 (7th Cir. 1998). The relevant inquiry is whether correctional officials actually knew about the danger that Wade faced, not whether a reasonable official should have known. Qian v. Kautz, 168 F.3d 949 955 (7th Cir. 1999).
Sleeping on a mattress on the floor is not in and of itself a constitutional violation. In order to state a conditions-of confinement claim of constitutional significance, the challenged condition must amount to punishment. Bell v. Wolfish, 441 U.S. 520, 535 (1979). The standard for determining punishment is similar whether considered in the context of the Due Process Clause or the Eighth Amendment. Salazar, 940 F.2d at 239-240. Punishment requires something more than routine discomfort. Rhodes v. Chapman, 452 U.S. 337, 349 (1981). Punishment in the constitutional sense requires allegations of extreme deprivations over an extended period of time. Hudson v. McMillian, 503 U.S. 1, 8-9 (1992); Bell at 542. Being assigned to sleep on the floor is not in itself enough to give rise to an arguable due process claim of punishment. Hines v. Sheahan, 845 F. Supp. 1265, 1269 (N.D. Ill. 1994); Powell v. Cook County Jail, 815 F. Supp. 757, 759 (N.D. Ill. 1993).
Wade also complains that he did not get an extra blanket although he was cold. Although a lack of heat could rise to a constitutional claim, see, e.g., Del Raine v. Williford, 32 F.3d 1024, 1035 (7th Cir. 1994), Wade has not alleged intentional exposure to extreme cold with no means to protect himself He alleges that his cell was infested with vermin. Prolonged exposure to vermin could state a constitutional violation. See, e.g., Antonelli v. Sheahan, 81 F.3d 1422, 1431 (7th Cir. 1996). However, Wade has not claimed he suffered any injury from this exposure, an essential element of a conditions-of confinement claim. See 42 U.S.C. § 1997e(e) ("no Federal civil action may be brought by a prisoner . . . for mental or emotional injury suffered while in custody without a prior showing of physical injury").
Wade, however, has scoliosis, which may be a serious medical problem, and he reported "back problem" on his Medical Intake Record, dated September 4, 1997 (Defendants' exhibit D). Wade avers that sleeping on a mattress on the floor exacerbated his condition and that Officer Merlong assigned other men to beds that became available because Wade complained too much. The court accordingly concludes that Officer Merlong's actions meets the objective prong of Wilson because he did not give Wade a bed when one became available although Wade had informed him of his medical condition. However, as noted earlier, Officer Merlong was dismissed from this action because Wade failed to serve him within 120 days of the filing of this complaint.
The next question is whether any of the defendants remaining in this action acted with deliberate indifference toward Wade. Defendant Stroger argues that he cannot be held liable for the actions of the Sheriff's Department. Illinois law specifically provides that the Cook County Department of Corrections is a department created within the office of the Cook County Sheriff 55 ILCS 5/3-15002 and 15003 (1998). Policies concerning jail operation "are solely under the supervision" of the Sheriff as "an independently-elected constitutional officer." DeGenova v. Sheriff of DuPage County, 209 F.3d 973, 976 (7th Cir. 2000). quoting Thompson v. Duke, 882 F.2d 1180, 1187 (7th Cir. 1989). It is the sheriff who has final policymaking authority over jail operations, not the Cook County Board or its president, John Stroger. Defendant Stroger accordingly cannot be held liable for any constitutional violation that Wade endured while in the custody of the CCDOC.
Although Wade does not specifically state that he is suing defendants Sheahan and Collier in their official capacity, he states in his complaint that Sheahan has a policy of putting pretrial detainees anywhere they can fit and not moving detainees to other areas of the jail where a bed may be vacant and that the superintendent carries out this policy. Actions brought against governmental employees in their official capacities are actually claims against the governmental entity for which they work. Kentucky v. Graham, 473 U.S. 159, 167 (1985). A local governmental entity is liable for damages only if a plaintiff can show that the alleged constitutional deprivation occurred as a result of an official policy, custom, or practice. Monell v. Department of Social Services, 436 U.S. 658, 694 (1978).
Wade contends that defendants' actions constitute a widespread practice, and the Seventh Circuit has determined that a municipality can be said to have violated the rights of a person because of its policy when a widespread practice, although not authorized by written law or express municipal policy, is "so permanent and well settled as to constitute a custom or usage with the force of law." Baxter by Baxter v. Vigo County School Corp., 26 F.3d 728, 735 (7th Cir. 1994). The usual way in which an unconstitutional policy is inferred, in the absence of direct evidence, is by showing a series of bad acts and inviting the court to infer from them that the policymaking level of government was bound to have noticed what was going on and by failing to do anything must have encouraged, or a least condoned, the misconduct of subordinate officers. A single act of misconduct, however, will not suffice; for it is the series that lays the premise of the system of inference. Jackson v. Marion County, 66 F.3d 151, 152 (7th Cir. 1995).
As discussed earlier, sleeping on the floor is not in and of itself a constitutional violation. Even giving Wade's complaint its most liberal reading, he has not averred that Sheahan and his superintendent had a policy of assigning beds to detainees who entered CCDOC later although an earlier detainee had a medical necessity for sleeping on a bed. Because Wade has not alleged a specific pattern or series of incidents supporting his general allegations, defendants Sheahan and Collier cannot be held liable in their official capacities.
Wade stated in his deposition that he never informed defendants Sheahan or Collier about his problem. (Exhibit C, pp. 15-16.) Individuals cannot be held liable in a § 1983 action unless they caused or participated in the alleged constitutional deprivation. Vance v. Washington, 97 F.3d 987, 991 (7th Cir. 1996); Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995); Rascon v. Hardiman, 803 F.2d 269, 273 (7th Cir. 1986) ( citing Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983)). Supervisors and others in authority also cannot be held liable for any alleged wrongdoing on the part of subordinates pursuant to the doctrine of respondeat superior because that doctrine does not apply in § 1983 actions. See Pacelli v. DeVito, 972 F.2d 871, 877 (7th Cir. 1992); Jones v. City of Chicago, 856 F.2d 985, 992 (7th Cir. 1988). Defendants Sheahan and Collier accordingly cannot be held liable for any constitutional violation that occurred while Wade was at CCDOC.
The only defendant who might have acted with deliberate indifference to Wade was Officer Merlong. However, summons on Merlong was returned unexecuted on May 4, 1999, with a notation that no one by that name was at Cook County Jail. Although given an opportunity to show cause why he had not served Merlong within 120 days of the filing of the complaint, Wade failed to responded. Merlong was therefore dismissed from the action without prejudice.
This is not to say that Officer Merlong acted with deliberate indifference to Wades s serious medical needs. The court does not have any documentation before it, other than Wade's unsupported declarations, that Wade's scoliosis was so severe that it constituted a serious medical need or that sleeping on a mattress on the floor would exacerbate his condition.
Even if Wade could now identify the officer named as Merlong in the complaint (he referred to the officer as "Malone" in his deposition), any action against that officer would now be time-barred if he were to attempt to amend his complaint.
The statute of limitations for § 1983 actions in Illinois is two years. Farrell v. McDonough, 966 F.2d 279, 280-82 (7th Cir. 1992); Kalimara v. Illinois Department of Corrections, 879 F.2d 276, 277 (7th Cir. 1989). Wade states that the last date on which he did not get a bed was February 21, 1998, more than two years ago.
[A]mendment with relation back is generally permitted in order to correct a misnomer of a defendant where the proper defendant is already before the court and the effect is merely to correct the named under which he is sued. But a new defendant cannot normally be substituted or added by amendment after the statute of limitations has run. Worthington v. Wilson, 8 F.3d 1253, 1256 (7th Cir. 1993) quoting Wood v. Worachek, 618 F.2d 1225, 1229-30 (7th Cir. 1980).
In his response to the motion for summary judgment, Wade appears to claim that the defendants violated the Americans with Disabilities Act. The Supreme Court has held that the ADA applies to prisons. See Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206, (1998). However, Erickson v. Board of Governors for Northeastern Illinois University, 207 F.3d 945 (7th Cir. 2000), and Stevens v. Illinois Department of Transportation, No. 98-3550 (7th Cir. Apr. 11, 2000), hold that claims under the ADA must be raised in state court, not federal court.
IV. Conclusion
For the foregoing reasons, defendants Stroger, Sheahan, and Collier's motion for summary judgment is granted and this action is dismissed in its entirety with prejudice.
If Wade wishes to appeal this dismissal, he may file a notice of appeal with this court within 30 days of the entry of judgment. Fed.R.App.P. 4(a)(4). If he does so, he will be liable for the $105 appellate filing fee. Unless he is granted leave to proceed in forma pauperis, he will have to pay the fee immediately. If he cannot do so, the appeal will be dismissed, but he will remain liable for the fee and it will be deducted from his inmate trust fund account in installments. Newlin v. Helman, 123 F.3d 429, 434 (7th Cir. 1997). If this court finds that the appeal is not taken in good faith, and the Court of Appeals agrees, he will not be permitted to proceed in forma pauperis and pay the fee in installments, but will have to pay the fee immediately or the appeal will be dismissed. 28 U.S.C. § 1915 (a)(3); Newlin, 123 F.3d at 433-34. To avoid a finding that the appeal is not taken in good faith, a motion to proceed in forma pauperis on appeal should explain the grounds for the appeal. See Hyche v. Christensen, 170 F.3d 769, 771 (7th Cir. 1999); Newlin, 123 F.3d at 433; Fed.R.App.P. 24(a)(1)(C).