Ross v. Montgomery County Sheriff's Department et al

Filing 9

IT IS HEREBY ORDERED that Count 1 and 2 are DISMISSED with prejudice as legally frivolous. Count 3 is DISMISSED without prejudice for failure to state a claim. IT IS FURTHER ORDERED that, should he wish to proceed with this case, Plaintiff shall fil e his First Amended Complaint, stating any facts which may exist to support the conditions of confinement claim in Count 3. Failure to file an amended complaint shall result in the dismissal of this action with prejudice. (Amended Pleadings due by 12/6/2017). Signed by Judge J. Phil Gilbert on 11/7/2017. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RICHARD P. ROSS
Plaintiff,
vs.
MONTGOMERY COUNTY SHERIFF’S
DEPARTMENT,
JIM VOZZI, and
KEVIN KNISLEY
Defendants.

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Case No. 17−cv–1074−JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Richard P. Ross, an inmate in Graham Correctional Center, brings this action for
deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983 for events that happened at
the Montgomery County Jail. Plaintiff requests financial compensation. This case is now before
the Court for a preliminary review of the Complaint pursuant to 28 U.S.C. § 1915A, which
provides:
(a) Screening – The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for Dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the
complaint–
(1) is frivolous, malicious, or fails to state a claim on which
relief may be granted; or
(2) seeks monetary relief from a defendant who is immune
from such relief.

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An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers
to a claim that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 102627 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted if it does not
plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross “the line
between possibility and plausibility.” Id. at 557. At this juncture, the factual allegations of the
pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577
F.3d 816, 821 (7th Cir. 2009).
Upon careful review of the Complaint and any supporting exhibits, the Court finds it
appropriate to exercise its authority under § 1915A; portions of this action are subject to
summary dismissal.
The Complaint
Plaintiff was incarcerated at the Montgomery County Jail from January 20, 2017 until
August 1, 2017. (Doc. 1, p. 5). He was a pre-trial detainee until August 1, 2017. Id. During
that time Kinsley and Vozzi illegally used his funds to pay for medical and hygiene expenses at
the jail. Id. As a result of the allegedly illegal encumbrances on Plaintiff’s account, he could not
buy envelopes to write to his family or attorneys. Id.
Plaintiff was also charged $.52 per minute to make phone calls. Id. He alleges that the
maximum the jail is permitted to charge is $.22 per minute. Id. The jail also added an allegedly
illegal $.30 surcharge.

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Plaintiff was also forced to sleep on the floor for 182 days because of overcrowding and
because when he was assigned to a bunk, it was the top bunk and Plaintiff could not climb into
the top bunk. Id.
Discussion
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into 3 counts. The parties and the Court will use these designations in all future
pleadings and orders, unless otherwise directed by a judicial officer of this Court. At this time,
none of the claims survive threshold review.
Count 1 – Vozzi and Knisley deprived Plaintiff of his Fourteenth Amendment
rights under the due process clause when they encumbered his account to pay for
hygiene supplies and medical expenses;
Count 2 – Plaintiff’s constitutional rights were violated when he was overcharged
for phone service;
Count 3 – Plaintiff’s Fourteenth Amendment rights were violated when he was
forced to sleep on the floor due to overcrowding and medical reasons.
Plaintiff’s Count 1 is patently frivolous.

It does not violate the Constitution for

institutions to charge inmates a co-pay for medical care. Poole v. Isaacs, 703 F.3d 1024, 1027
(7th Cir. 2012). Prisons and jails cannot deny an inmate health care based on an inability to pay,
but they are well within their rights to charge inmates who can afford it a modest fee in order to
recoup the cost of their care. Id. Plaintiff has not alleged that he has a medical condition that
went untreated because he could not pay for it; he has alleged that his funds were improperly
taken from him. The relevant Illinois County Jail Act specifically permits a jail to recoup costs
expended on detainee medical care. 730 ILCS 125/17. Plaintiff appears to believe that the
Montgomery County Jail must bear responsibility for all expenditures on his behalf, but that
position is squarely foreclosed by the relevant state statutes and case law.

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The Seventh Circuit has also found that hygiene, like health care, is a fundamental right
that officials must provide for inmates. Board v. Farnham, 394 F.3d 469, 482 (7th Cir. 2005).
However, the Court is aware of no case that establishes that a jail or prison must provide hygiene
items free of charge, and several cases have explicitly rejected this position. Hoskins v. Murrel,
No. 13-cv-3090, 2013 WL 2102133 at *2 (C.D. Ill May 14, 2013) (citing Poole, 703 F.3d at
1027); Parker-Bey v. Roth, No. 90 C 2983, 1993 WL 390173 at *2 (N.D. Ill. October 1, 1993);
Young v. Ballis, 762 F.Supp. 823, 830 (S.D. Ind. 1990) (system where inmates’ families and
friends provided hygiene items did not offend the constitution). Moreover, Illinois state statutes
permit jails to recoup costs for expenses incurred from incarceration.

730 ILCS 125/20.

Plaintiff has not alleged that he was actually deprived of hygiene items at any time; his only
allegation was that he had to pay for them. This is analogous to the medical co-pay requirement.
Although deprivations of hygiene items may offend the Constitution, nothing compels the state
to bear the full financial cost of that burden as to inmates with sufficient funds. As no case law
establishes that an inmate is entitled to free hygiene supplies, Plaintiff’s claim fails. Count 1
will be dismissed with prejudice as legally frivolous.
In Count 2, Plaintiff has alleged both that the rates for phone calls from the jail are too
high, and that the jail tacked on an improper surcharge. Plaintiff has provided no support for his
proposition that the charges on calls cannot exceed $.22 per minute.

The relevant state

regulations do not specify how much county jails can charge for phone calls, other than to state
that: “detainees may be required to bear the expense of any telephone calls they make or to place
only collect calls.” 20 Ill. Adm. Code 701.190 (d). The Court is certainly not aware of any
federal regulation or state statute that caps the limit county jails can charge for phone calls.
More to the point, the Seventh Circuit has held that that telephone rates, even exorbitant rates, do

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not violate the First Amendment. Arsberry v. Illinois, 244 F.3d 558, 564 (7th Cir. 2001).
Arsberry also foreclosed relief based on telephone rates under the Takings Clause or the Due
Process clause. Id. at 564-66. Plaintiff has no constitutional claim based on the rate for
telephone service; therefore Count 2 will be dismissed with prejudice as legally frivolous.
Count 3 will be dismissed without prejudice for failure to state a claim. Plaintiff’s
Complaint indicates that he was a pre-trial detainee at the time of the relevant events. While the
Eighth Amendment prohibits cruel and unusual punishment meted out against those convicted of
crimes, the Due Process Clause of the Fourteenth Amendment prohibits any punishment against
a pretrial detainee. Smith v. Dart, 803 F.3d 304, 309 (7th Cir. 2015); Antonelli v. Sheahan, 81
F.3d 1422, 1427 (7th Cir. 1996) (citing Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979)). A
condition of confinement imposed on a pre-trial detainee satisfies the Constitution when it is
reasonably related to a legitimate and non-punitive governmental goal. Antonelli, 81 F.3d. at
1427-28. However, there is little practicable difference between the Eighth and Fourteenth
Amendment standards, and it is not err to apply the standards interchangeably. Smith, 803 F.3d
at 310.
Plaintiff alleges that he was forced to sleep on the floor for 182 days, partially due to
overcrowding, and partially because he could not climb to his assigned top bunk. In a case
involving conditions of confinement in a prison or jail, 2 elements are required to establish
constitutional violations. First, an objective element requires a showing that the conditions deny
the inmate “the minimal civilized measure of life's necessities,” creating an excessive risk to the
inmate's health or safety.

Farmer v. Brennan, 511 U.S. 825, 834 (1994).

The second

requirement is a subjective element—establishing a defendant's culpable state of mind. Id.

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With respect to the first element, not all prison conditions trigger constitutional
scrutiny—only deprivations of basic human needs like food, medical care, sanitation, and
physical safety. Rhodes v. Chapman, 452 U.S. 337, 346 (1981); see also James v. Milwaukee
Cnty., 956 F.2d 696, 699 (7th Cir. 1992). The condition must result in unquestioned and serious
deprivations of basic human needs or deprive inmates of the minimal civilized measure of life's
necessities. Rhodes, 452 U.S. at 347; accord Jamison-Bey v. Thieret, 867 F.2d 1046, 1048 (7th
Cir. 1989); Meriwether v. Faulkner, 821 F.2d 408, 416 (7th Cir. 1987). Mere discomfort and
inconvenience do not implicate the Constitution. See Caldwell v. Miller, 790 F.2d 589, 600-01
(7th Cir. 1986).
Plaintiff has not adequately alleged that he was deprived of a basic human need. It may
have been uncomfortable for him to sleep on the floor, but the Constitution does not mandate
comfortable prisons. Tesch v. County of Green Lake, 157 F.3d 465, 476 (7th Cir. 1998); see also
Antonelli, 81 F.3d at 1430 (concluding sleeping on the floor without a mattress for a single night
is not punishment); Powell v. Cook County Jail, 814 F.Supp. 757, 759 (N.D. Ill. 1993) (holding
that the Constitution is indifferent as to whether the mattress is on the floor or the bed). Plaintiff
has not alleged that he was made to sleep on the floor as a punitive measure, nor has he alleged
that any doctor determined that he should have a low bunk permit. Additionally, while Plaintiff
has alleged that he slept on the floor for a significant length of time, he has failed to allege that
he was harmed. Without a plausible allegation of harm, Plaintiff has not adequately alleged that
he was deprived of a basic human need. Section 1983 is a tort statute, so plaintiff must have
suffered a harm to have a cognizable claim. Bridges v. Gilbert, 557 F.3d 541, 555 (7th Cir.
2009); Doe v. Welborn, 110 F.3d 520, 523 (7th Cir.1997).

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Plaintiff has also failed to adequately allege the subjective component of a conditions of
confinement claim. Plaintiff does not mention any of the Defendants in connection with his
claim about sleeping on the floor.

He does not allege that he complained to any of the

Defendants about sleeping on the floor, or that they were otherwise aware of the situation.
Without an allegation that any defendant had knowledge, it is not plausible that any defendant
was actually deliberately indifferent to Plaintiff’s situation. For the above reasons, Count 3 will
be dismissed without prejudice.
Disposition
IT IS HEREBY ORDERED that Count 1 and 2 are DISMISSED with prejudice as
legally frivolous. Count 3 is DISMISSED without prejudice for failure to state a claim.
IT IS FURTHER ORDERED that, should he wish to proceed with this case, Plaintiff
shall file his First Amended Complaint, stating any facts which may exist to support the
conditions of confinement claim in Count 3 (on or before December 6, 2017). An amended
complaint supersedes and replaces the original complaint, rendering the original complaint void.
See Flannery v. Recording Indus. Ass’n of Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004). The
Court will not accept piecemeal amendments to the original complaint. Thus, the First Amended
Complaint must stand on its own, without reference to any other pleading. Should the First
Amended Complaint not conform to these requirements, it shall be stricken. Plaintiff must also
re-file any exhibits he wishes the Court to consider along with the First Amended Complaint.
Failure to file an amended complaint shall result in the dismissal of this action with prejudice.
Such dismissal shall count as one of Plaintiff’s three allotted “strikes” within the meaning of 28
U.S.C. § 1915(g).

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Plaintiff is warned, however, that the Court takes the issue of perjury seriously, and that
any facts found to be untrue in the Amended Complaint may be grounds for sanctions, including
dismissal and possible criminal prosecution for perjury. Rivera v. Drake, 767 F.3d 685, 686 (7th
Cir. 2014) (dismissing a lawsuit as a sanction where an inmate submitted a false affidavit and
subsequently lied on the stand).
No service shall be ordered on any Defendant until after the Court completes its § 1915A
review of the First Amended Complaint.
In order to assist Plaintiff in preparing his amended complaint, the Clerk is DIRECTED
to mail Plaintiff a blank civil rights complaint form.
IT IS SO ORDERED.
DATED: November 7, 2017

s/J. Phil Gilbert
U.S. District Judge

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