Millsapp v. Moreci et al

Filing 33

MEMORANDUM Opinion and Order. Signed by the Honorable Young B. Kim on 9/19/2011. (aac, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ALBERT MILLSAPP,
Plaintiff,
v.
DANIEL MORECI, Superintendent of
the Cook County Jail, et al.,
Defendant.

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10 CV 6048

Magistrate Judge Young B. Kim

September 19, 2011

MEMORANDUM OPINION and ORDER
Pre-trial detainee Albert Millsapp brought this action under 42 U.S.C. § 1983 against
the unidentified director of the Cook County Jail and Daniel Moreci, who is the
superintendent of the division of the jail where Millsapp is housed. Millsapp alleges that the
defendants violated his rights under the Eighth and Fourteenth Amendments by subjecting
him to incessant loud noise in his cell during four months of his confinement. Currently
before this court is Moreci’s motion to dismiss the complaint pursuant to Federal Rule of
Civil Procedure 12(b)(6). For the following reasons, the motion is denied.
Background
This court takes as true the facts in Millsapp’s pro se complaint and views those facts
in the light most favorable to Millsapp. See Tamayo v. Blagojevich, 526 F.3d 1074, 1081
(7th Cir. 2008). According to his complaint, throughout his confinement at the Cook County
Jail, Millsapp has been confined to his cell for 22 to 23 hours per day. (R. 6, Compl. ¶¶ 15,
18.) Because his cell is made from concrete and metal, noises generated outside and within

his cell are amplified. (Id. ¶ 18.) From late March to late July 2010, the sink in Millsapp’s
cell ran incessantly. (Id. ¶¶ 19, 29.) According to Millsapp, “[t]he deep howling, vibrating
sound of the water radiated through the cell relentlessly pounding in his ears . . . . The sound
is best described by if one were to submerge his own head in water and then beat the water
with objects without ceasing.” (Id. ¶¶ 19-20.) Millsapp claims that the noise was the
equivalent of “water torture,” causing him to suffer dizziness, vomiting, constant headaches,
loss of appetite, weight loss, and suicidal thoughts. (Id. ¶¶ 24-25, 27-28.) Even after the sink
was finally fixed, Millsapp continues to suffer from headaches and tinnitus, as well as
depression and anxiety stemming from his fear that the noise of the running water could
return at any time. (Id. ¶¶ 29-33.)
Millsapp alleges that over the course of the four months in which his sink never
stopped running, he filed multiple grievances with several shift sergeants and Moreci
requesting that they fix the sink or transfer him to another cell. (Id. ¶¶ 8, 21, 26.) His
grievances were ignored. (Id. ¶ 21.) In May 2010 Millsapp’s family members called Moreci
to convey Millsapp’s complaints and to ask him to fix the running sink. (Id. ¶ 25.) In
response correctional officers told Millsapp to “bond out or plead guilty and go to prison and
you won’t have to hear the water any more.” (Id.) The next month, Moreci “was on the deck
and laughed at” Millsapp, but Millsapp continued to file grievances pleading for an end to
the noise. (Id. ¶ 26.)

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On September 22, 2010, Millsapp brought this suit against Moreci and the
unidentified jail director. After the parties consented to the jurisdiction of this court, (R. 10),
Moreci filed the current motion to dismiss, (R. 16).
Analysis
A defendant is entitled to dismissal if the complaint’s allegations are insufficient to
state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). Although at the
dismissal stage all well-pleaded facts are taken as true and reasonable inferences are viewed
in a light most favorable to the plaintiff, McGowan v. Hulick, 612 F.3d 636, 638 (7th Cir.
2010), the factual allegations must “state a claim for relief that is plausible on its face,” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In other words, a complaint will
survive a motion to dismiss if it gives the defendants “fair notice of what . . . the claim is and
the grounds upon which it rests,” and if it includes allegations that are “enough to raise a
right to relief above the speculative level.” Id. at 555 (internal quotation omitted). In
reviewing the current motion, this court bears in mind that pro se complaints are held to a
less stringent standard of pleading. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Moreci argues that Millsapp’s allegations are insufficient to establish either that he
was subject to conditions amounting to cruel and unusual punishment or that Moreci was
deliberately indifferent to those conditions. “The treatment a prisoner receives in prison and
the conditions under which he is confined are subject to scrutiny under the Eighth
Amendment,” which prohibits the “cruel and unusual” punishment of a prisoner. Helling v.

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McKinney, 509 U.S. 25, 31 (1993). The Eighth Amendment protects prisoners by imposing
a duty on prison officials to provide “humane conditions of confinement.” Farmer v.
Brennan, 511 U.S. 825, 832 (1994). This constitutional protection is extended to pre-trial
detainees through the Due Process Clause of the Fourteenth Amendment, Zentmyer v.
Kendall County, 220 F.3d 805, 810 (7th Cir. 2000), and “‘the due process rights of a pre-trial
detainee are at least as great as the Eighth Amendment protection available to a convicted
prisoner,’” Higgins v. Correctional Med. Services of Ill. Inc., 178 F.3d 508, 511 (7th Cir.
1999)(quoting Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 259 (7th Cir. 1996)).
A pretrial detainee’s claim challenging the conditions of his confinement must meet
two requirements. Helling, 509 U.S. at 35. The first is objective—the court asks whether
the deprivation alleged is “sufficiently serious.” Sanders v. Sheahan, 198 F.3d 626, 628 (7th
Cir. 1999). The second is subjective—the detainee must allege that the prison official knew
about and acted with “deliberate indifference” to the complained-of condition. Id. The
objective and subjective components of a § 1983 claim are not static, but are subject to the
evolving standards of contemporary society. Ropper v. Simmons, 543 U.S. 551, 561 (2005).
Whether Millsapp’s allegations are sufficiently serious to meet the objective Eighth
Amendment criteria is a close question. On the one hand, as a practical matter, it is difficult
to understand how the sound of running water, even if constant, could be so loud that it
presents the kind of “extreme deprivation” that is “required to make out a conditions-ofconfinement claim.” Hudson v. McMillian, 503 U.S. 1, 9 (1992). Millsap claims in his

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response that the sound was so loud he and “his cell mate had to yell over the roaring water
sound just to be able to communicate.” (R. 29 at 1.) On the other hand, the Seventh Circuit
and other courts have acknowledged that incessant loud noise in a prisoner’s cell can satisfy
the objective criteria. See Sanders, 198 F.3d at 628; Antonelli v. Sheahan, 81 F.3d 1422,
1433 (7th Cir. 1996); Keenan v. Hall, 83 F.3d 1083, 1090 (9th Cir. 1996); Phelps v. United
States Bureau of Prisons, 62 F.3d 1020, 1023-4 (8th Cir. 1995). Although it is true that
sporadic loud noise over the course of a few days may not rise to the level of a constitutional
violation, see Lunsford v. Bennett, 17 F.3d 1574, 1577, 1580 (7th Cir. 1994), here Millsapp
alleges that the noise in his cell consisted of an intolerably loud and relentless roaring sound
that lasted over the course of a four-month period. (R. 6, Compl. ¶¶ 19, 24, 29.) And
Millsapp benefits at this stage in the litigation from the rule that the court must interpret his
complaint less stringently than it would the allegations drafted by a lawyer. See Antonelli,
81 F.3d at 1428. At the summary-judgment stage, Millsapp will have to come forward with
evidence supporting his allegations that the amplified noise from his sink was so loud that
it created an objectively inhumane condition in his cell.
With respect to the subjective, deliberate-indifference component, Millsapp alleges
that Moreci and the director of the Cook County jail knew about the noise in his cell and
ignored his many complaints. Because the doctrine of respondeat superior does not apply
to claims brought under § 1983, Millsapp must allege that the defendants “caused or
participated in the alleged constitutional deprivation.” See Zimmerman v. Tribble, 226 F.3d

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568, 574 (7th Cir. 2000) (quotation omitted). “It is not enough that the defendant ‘should
have known’ of the risk” to the detainee’s health or safety; rather, the complaint must allege
that he knew of the risk and consciously disregarded it. See Higgins, 178 F.3d at 511. This
requirement means that “the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he must also draw the
inference.” Farmer, 511 U.S. at 837.
Moreci argues that Millsap’s complaint insufficiently alleges that he knew of and
disregarded the alleged risk to his health and safety stemming from the noise in his cell.
Relying heavily on the unpublished, nonprecedential case of Robinson v. Welborn, 107 F.3d
873, 1997 WL 58868, at *2 (7th Cir. Feb. 6, 1997), Moreci argues that Millsap’s letterwriting campaign “is insufficient to confer knowledge” of the allegedly inhumane conditions
in his cell. (R. 16, Def’s. Mot. at 5.) The Robinson case involved a motion for summary
judgment based on evidence, in the form of affidavits, showing that the defendant warden
and assistant warden had no personal knowledge of the prisoner’s complaints or direct
involvement in the complained-of omissions. 1997 WL 58868, at *2. Although there was
evidence that the plaintiff had sent the defendants letters notifying them of his complaints,
the evidence showed that neither defendant had personal responsibility for the conditions in
his cell. Id. Under those circumstances, the Seventh Circuit decided that simply notifying
the defendants via letter of the complaints was insufficient to bring the defendants “into the
zone of liability” where they were “not otherwise responsible for allegedly unconstitutional

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conditions.” Id. But Robinson’s application is limited here, where, given the procedural
posture of this case, the court is required to accept Millsapp’s allegations. Giving his
complaint the liberal construction it is due, Millsapp has alleged not just that he made Moreci
aware of the noise in his cell, but that Moreci was responsible for correcting the condition.
(R. 6, Compl. ¶¶ 21-22, 25-26, 36.)
Notwithstanding the Robinson decision, the Seventh Circuit “allows the possibility
that an inmate’s letters to prison administrators may establish a basis for § 1983 liability,”
so long as “the communication, in its content and manner of transmission, gave the prison
official sufficient notice to alert him” to the complained-of risk. Vance v. Peters, 97 F.3d
987, 993 (7th Cir. 1996). Here Millsapp not only alleges that he wrote Moreci letters
begging to have his sink fixed or to be housed in a different cell, he also alleges that his
family members called Moreci and repeated those pleas. (R. 6, Compl. ¶¶ 21, 25.)
According to his complaint, shortly after his family placed their calls Moreci was in
Millsap’s unit and laughed at him—the implication being that Moreci was mocking Millsap’s
complaints. (Id. ¶ 26.) Taken together, these allegations are sufficient to show that Moreci
knew about the noise in Millsap’s cell and disregarded the alleged risk that condition caused
to Moreci’s health. See Farmer, 511 U.S. at 837.

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Conclusion
Because this court concludes that Millsapp’s allegations are adequate to meet both the
objective and the subjective criteria of his Eighth Amendment claim, the motion to dismiss
is denied.
ENTER:

________________________________
Young B. Kim
United States Magistrate Judge

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