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POWELL v. COOK CTY. JAIL

March 2, 1993

RALPH T. POWELL, Plaintiff,
v.
COOK COUNTY JAIL, Defendant.


Shadur


The opinion of the court was delivered by: MILTON I. SHADUR

Cook County Jail ("Jail") inmate Ralph Powell ("Powell"), seeks leave to file a self-prepared Complaint pursuant to 42 U.S.C. ยง 1983 ("Section 1983") without payment of the filing fee. For the reasons stated in this memorandum opinion and order, Powell's motion to proceed in forma pauperis is denied without prejudice.

 Every prospective in forma pauperis litigant must overcome two threshold obstacles to obtain that status:

 
1. he or she must make the required showing of financial indigency.
 
2. his or her complaint must disclose the existence of at least one non-"frivolous" claim in the legal sense described by Neitzke v. Williams, 490 U.S. 319, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989) and most recently reconfirmed in Denton v. Hernandez, 118 L. Ed. 2d 340, 112 S. Ct. 1728, 1733-34 (1992).

 It is uncertain whether Powell qualifies for the first of those requirements, for his simultaneously-filed financial statement did not include a properly completed certificate of his trust fund account at the Jail. But in any event his claims do not survive the second step--the substantive one.

 Powell's overriding problem is that he has not identified a proper suable defendant to his charges. Section 1983 imposes liability on any "person" who violates someone's constitutional rights "under color of law." Cook County Jail is not a "person"--it is not a legal entity to begin with. And even if the proper legal entity were named instead, the case law under Section 1983 imposes added difficulties on actions against governmental agencies themselves, rather than against the individuals guilty of the constitutional violations.

 That alone requires denial of Powell's effort to obtain permission to proceed in forma pauperis on his present complaint. But because that defect alone could be cured by identification of a proper defendant, this opinion goes on to speak of other problems that Powell would face if he were to try again with the same allegations that he has now advanced.

 Here is Powell's statement of claim in its entirety (copied verbatim):

 
Since I have been in here I've been sleeping on the floor. I have had numerous of colds, fever, stripped throat, and even the crabs. I have also came across roaches that were on my body and have suffered other insect bites. And didn't receive any medical attention. I have had colds in July, August, November of 1992 I have had fevers in October, a December of 1992. A stripped throat in September of 1992. I have had the crabs in September of 1992, and in January of 1993, which I had to cut the hairs off my whole body to get rid of. I have often back pains and have not seen anyone for medical attention, or nothing of a kind. At present I have a server cold, and a stripped throat which I have not receive any medical attention for. The only thing I have receive was aspirin which I'm allergic to. Nothing else for those other sickness.

 Two areas of ambiguity in that statement would inhibit any informed decision as to whether Powell's claims--even assuming a proper defendant--would rise above the "frivolousness" level as defined in Neitzke v. Williams, 490 U.S. 319, 104 L. Ed. 2d 338, 109 S. Ct. 1827 (1989) and most recently reconfirmed in Denton v. Hernandez, 118 L. Ed. 2d 340, 112 S. Ct. 1728, 1733-34 (1992).

 
Nothing in the Constitution "requires elevated beds for prisoners" ( Mann v. Smith, 796 F.2d 79, 85 (5th Cir. 1986); Montgomery v. O'Grady, No. 89 C 8286, 1991 U.S. Dist. LEXIS 735, at *8-*9 (N.D. Ill. Jan. 18, 1991)).
 
Keeping vermin under control in jails, prisons and other large institutions is a monumental task. Again the failure to do so, without any suggestion that it reflects deliberate and reckless conduct in the criminal law sense, is not a constitutional violation (see Harris v. Fleming, 839 F.2d 1232 (7th Cir. 1988); Lynch v. Sheahan, No. 92 C 1087, 1992 U.S. Dist. LEXIS 13858 (N.D. Ill. Sept. 11, 1992 (no constitutional violation found when detainee has been housed in an infested cell without a ...

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