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February 27, 1989

DONALD BOONE, Plaintiff,
RICHARD J. ELROD, et al., Defendants

Brian Barnett Duff, United States District Judge.

The opinion of the court was delivered by: DUFF


 Plaintiff Donald Boone brings this action under 42 U.S.C. ยง 1983 against three Cook County, Illinois, officials for allegedly violating his constitutional rights while he was a pretrial detainee in the Cook County jail. The defendants are Richard J. Elrod, Sheriff of Cook County, Phillip Hardiman, Executive Director of the Cook County Department of Corrections, and Charles Dunigan, Captain of Division 1 at the Cook County jail. Plaintiff sues all three defendants in their individual and official capacities. The defendants have moved for summary judgment. For the reasons set forth below, their motion is denied.


 Plaintiff's affidavits and exhibits present a straightforward account of the events underlying this lawsuit. At some time prior to April, 1984, plaintiff was placed in a cell in Division 1, Tier G-2 of the Cook County jail to await trial on criminal charges against him. Plaintiff soon became frightened by the threats and physical violence of a number of gang members in his tier. Specifically, he was repeatedly forced to turn over his belongings to the gang members, and when he refused, he was beaten.

 Plaintiff began writing letters to Cook County officials seeking a cell transfer. On April 23, 1984 he wrote a letter to Captain Dunigan informing him of the activities of the gang members and pleading for protection. On July 16, after the letter to the captain had gone unanswered, plaintiff wrote a letter to Director Hardiman, repeating his pleas for transfer and explaining that he was "in fear of losing his life." On August 13, having still received no response from anyone, plaintiff wrote to Sheriff Elrod, reiterating his fears and noting that he had written letters to Captain Dunigan and Director Hardiman but that no action had been taken. Finally, on September 11, plaintiff wrote another letter to Sheriff Elrod, noting that the threats against him had increased and begging for some assistance.

 On October 29, 1984 plaintiff was brutally beaten by a number of gang members in Division 1, Tier G-2. He was soon taken to Cermak Hospital, and after being treated for his injuries, was returned to the Cook County jail. At this point, he was placed on the safekeeping tier, Division 1, Tier F. Unfortunately, as a result of the beating, he was blinded in his left eye.

 The defendants do not deny (for the purposes of this motion) that plaintiff suffered the threats and beatings prior to the October 29 incident. They do not deny that he wrote the letters he claims to have written to each of them. Nor do they deny that he was blinded by the October 29 beating. Instead, all three state that they do not recall receiving any of the letters or knowing of the threats against him, and then explain what they would have done had they learned of the problem.

 Sheriff Elrod states that whenever he receives prisoner complaints he forwards them to Director Hardiman. He says that he does not manage the day-to-day operations of the Cook County jail, and therefore never transfers anyone within the jail.

 Director Hardiman states that when he receives prisoner complaints, he forwards them to the appropriate division captain for proper action. Like Sheriff Elrod, he says that he does not manage the day-to-day operation of the jail and therefore does not transfer inmates to different cells.

 Captain Dunigan states that when he receives prisoner complaints, he investigates them. He says that if he had received the letters regarding the threats and violence against plaintiff, he would have investigated them and, had they turned out to be true, transferred plaintiff to another cell. He attests, however, that he has no record of ever having investigated a complaint regarding threats or violence against plaintiff, and that accordingly no action was taken on plaintiff's behalf until the October 29 beating, at which time the captain had plaintiff transferred to a safer cell.


 As a preliminary matter, it is worth noting that the Fourteenth Amendment Due Process Clause, not the Eighth Amendment Cruel and Unusual Punishment Clause, governs this case. Throughout the entire time that plaintiff was incarcerated in the Cook County jail, he was awaiting trial on criminal charges -- that is, he was a pretrial detainee. Since plaintiff had not been convicted of a crime, the Due Process Clause protected him from any punishment at all, not just from the cruel and unusual punishment forbidden by the Eighth Amendment. Ingraham v. Wright, 430 U.S. 651, 671-72 n.40, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977); Anderson v. Gutschenritter, 836 F.2d 346, 348-49 (7th Cir. 1988).

 This distinction might sound important, but in a case such as this one it is not. Although a convicted prisoner is entitled to be free only from cruel and unusual punishment, while a pretrial prisoner is protected from any punishment, courts have drawn no distinction in the standards they apply when analyzing whether prison officials have violated a prisoner's rights. Thus, when the courts say that "the due process rights of a [pretrial detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner," Anderson v. Gutschenritter, 836 F.2d at 349 (emphasis added); Colburn v. Upper Darby Tp., 838 F.2d 663, 668 (3d Cir. 1988), what they really appear to mean, at least in the context of the actions of prison officials, is that they are precisely as great. See, e.g., Martin v. Tyson, 845 F.2d 1451, 1457 (7th Cir. 1988) ("An act or practice that violates the Eighth Amendment also violates the due process rights of pretrial detainees."). But see Whitley v. Albers, 475 U.S. ...

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