Neal v. Dart

Filing 5

WRITTEN Opinion entered by the Honorable John J. Tharp, Jr on 6/27/2013: The plaintiff's motion to proceed in forma pauperis [#3] is denied, without prejudice. The plaintiff is directed to: (1) either file a renewed, properly completed i.f.p. a pplication or pay the $400.00 filing fee; and (2) submit an amended complaint (plus a judge's copy and service copies). Failure to comply within thirty days of the date of this order will result in denial of leave to proceed in forma pauper is and summary dismissal of this case. The clerk is directed to provide the plaintiff with an i.f.p. application, an amended civil rights complaint form, and instructions along with a copy of this order. [For further details see opinion] Mailed notice. (np, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

JOHN J. THARP, JR.

CASE NUMBER

13 C 4614

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

6/27/2013

Jermaine Neal (#K-52497) vs. Tom Dart

DOCKET ENTRY TEXT:

The plaintiff’s motion to proceed in forma pauperis [#3] is denied, without prejudice. The plaintiff is directed
to: (1) either file a renewed, properly completed i.f.p. application or pay the $400.00 filing fee; and (2) submit
an amended complaint (plus a judge’s copy and service copies). Failure to comply within thirty days of the date
of this order will result in denial of leave to proceed in forma pauperis and summary dismissal of this case. The
clerk is directed to provide the plaintiff with an i.f.p. application, an amended civil rights complaint form, and
instructions along with a copy of this order.
O [For further details see text below.]

Docketing to mail notices.

STATEMENT
The plaintiff, currently an Illinois state prisoner, has brought this pro se civil rights action pursuant to 42
U.S.C. § 1983. The plaintiff claims that the defendant, the Cook County Sheriff, violated the plaintiff’s
constitutional rights by subjecting him to inhumane conditions of confinement when the plaintiff was a pretrial
detainee at the jail. More specifically, the plaintiff alleges that he spent twelve days in a “condemned” building
that was dirty, lacked water, air conditioning, and electricity, and was pest-infested.
The plaintiff has completed an incomplete application for leave to proceed in forma pauperis. An
incarcerated person seeking leave to proceed in forma pauperis must obtain a certificate from a prison official
stating the amount of money the prisoner has on deposit in his or her prison or jail trust fund account. To enable
the court to make the necessary assessment of an initial partial filing fee, the prisoner must also “submit a
certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6-month
period immediately preceding the filing of the complaint or notice of appeal, obtained from the appropriate
official of each prison at which the prisoner is or was confined.” 28 U.S.C. § 1915(a)(2). In the case at bar, the
plaintiff’s i.f.p. petition is not certified, and he has failed to include a six-month statement of his prison trust fund
account.
(CONTINUED)
mjm

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STATEMENT (continued)
If the plaintiff wants to proceed with this lawsuit, he must submit a certified i.f.p. petition, along with copies
of trust fund ledgers showing his income for the six months preceding the filing of this lawsuit [that is, from
December 24, through June 24, 2013]. In the alternative, the plaintiff may choose to pay the full statutory filing
fee of $400.00.
In addition, the plaintiff must submit an amended complaint, as the document on file fails to state a claim
of constitutional magnitude. This is one of many complaints filed by detainees who have been housed for short
periods in “Division 3” at the Cook County Jail. There seems to be a myth circulating at the jail that inmates who
are assigned to this unit are entitled to collect damages in federal court because the building is “abandoned” or
“condemned.” But these labels do not establish a constitutional claim.
Certainly, incarcerated persons are entitled to confinement under humane conditions that satisfy “basic
human needs.” Rice ex rel. Rice v. Correctional Medical Services, 675 F.3d 650, 664 (7th Cir. 2012) (citations
omitted). The Due Process Clause prohibits conditions that amount to “punishment” of a pretrial detainee. Bell
v. Wolfish, 441 U.S. 520,535 (1979); Lewis v. Downey, 581 F.3d 467, 473 (7th Cir. 2009). Nevertheless,
punishment in the constitutional sense requires something more than routine discomfort. Rhodes v. Chapman, 452
U.S. 337, 349 (1981); Granville v. Dart, No. 09 C 2070, 2011 WL 892751, *5 (N.D. Ill. Mar. 11, 2011)
(Leinenweber, J.). Punishment generally requires allegations of extreme deprivations over an extended period of
time. Hudson v. McMillian, 503 U.S. 1, 8-9 (1992); Bell at 542; Henderson v. Sheahan, 196 F.3d 839, 845 (7th
Cir. 1999); Johnson v. Bryant, No. 11 C 5785, 2011 WL 5118415, *2 (N.D. Ill. Oct. 26, 2011) (Holderman, J.).
Here, the complaint fails to state a plausible claim that the plaintiff was subjected to conditions that deprived
him of basic human needs. Even though the conditions described are unfortunate and unacceptable, the court
discerns no viable constitutional claim. There is no indication that the plaintiff was denied food, clothing, shelter,
or needed medical care, for example. While some of the conditions described could, in theory, rise to the level of
a constitutional claim, the complaint lacks allegations that would make such a claim colorable. Particularly in light
of the short-term nature of the plaintiff’s stay in that unit (twelve days), the court questions whether the plaintiff
has a tenable cause of action. The plaintiff is cautioned that if a prisoner has had a total of three federal cases or
appeals dismissed as frivolous, malicious, or failing to state a claim, he may not file suit in federal court without
prepaying the filing fee unless he is in imminent danger of serious physical injury. 28 U.S.C. § 1915(g).
For the foregoing reasons, the court dismisses the complaint on file without prejudice. The plaintiff is
granted thirty days in which to (1) either pay the statutory filing fee or file a properly completed application to
proceed in forma pauperis, and (2) submit an amended complaint on the court’s required form, if he believes he
can articulate a constitutional violation.
The plaintiff must write both the case number and the judge’s name on the amended complaint, sign it, and
return it to the Prisoner Correspondent. As with every document filed with the court, the plaintiff must provide an
(CONTINUED)

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STATEMENT (continued)
extra copy for the judge; he must also submit a service copy for each defendant named in the amended complaint.
The plaintiff is cautioned that an amended pleading supersedes the original complaint and must stand complete on
its own. Therefore, all allegations against all defendants must be set forth in the amended complaint, without
reference to the original complaint. Any exhibits the plaintiff wants the court to consider in its threshold review
of the amended complaint must be attached, and each copy of the amended complaint must include complete copies
of any and all exhibits. The plaintiff is advised to keep a copy for his files.
The clerk will provide the plaintiff with an i.f.p. application, an amended civil rights complaint form, and
instructions along with a copy of this order. If the plaintiff fails to comply with these directives within thirty days,
the court will deny leave to proceed in forma pauperis and dismiss this case in its entirety.

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