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December 19, 1994

DALE MILLER, Plaintiff,
J.W. FAIRMAN, et al., Defendants.

The opinion of the court was delivered by: JOHN F. GRADY

 Before the court is defendants' motion to dismiss the complaint. For the reasons stated in this opinion, the motion is granted in part and denied in part.


 Dale Miller was a pretrial detainee at the Cook County Jail during the time relevant to this lawsuit, which he brings under 42 U.S.C. § 1983 against J.W. Fairman, executive director of the Cook County Department of Corrections ("CCDOC"); Michael Sheahan, the Cook County Sheriff; James Carey, superintendent of the CCDOC; two Cook County Jail guards identified as "Sgt. Clay" and "Sgt. O'Carroll"; and two unidentified Cook County Jail guards sued as "John Doe #1" and "John Doe #2." Count I is a due process claim related to the conditions of confinement at the jail. Miller alleges that jail overcrowding forced him for at least nine months to sleep on the floor on a mattress where mice and fruit flies sometimes crawl; that on one occasion a broken water pipe in the jail flooded the area of the floor and soaked his mattress until the leak was repaired more than two months later; that the shower and toilet areas were filthy and roach-infested; that the toilets or urinals sometimes leaked water onto persons using them; that the jail is in a general state of disrepair and is improperly ventilated; and that after inmates broke window panes to try to improve ventilation in the summer, the jail did not replace the panes even after the start of winter, causing the interior temperature to become so cold that plaintiff could see his breath and had to walk around wrapped in his bed linens. Miller also has included in Count I an allegation that jail officials denied him due process by placing him in disciplinary segregation without adequate notice and hearing. Count II alleges that one of the two unidentified guards beat him for no reason while the other watched. Count III alleges Miller's right of access to the courts was violated by the jail's policy of not paying the postage on pieces of inmate mail weighing more than one ounce.

 I. Count I

 To state a claim under § 1983, the plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988). The constitutional guarantee of due process applies to pretrial detainees' claims of unconstitutional conditions of confinement. Bell v. Wolfish, 441 U.S. 520, 535, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). Bell was a case of federal confinement implicating Fifth Amendment due process, but the holding has also been applied to cases involving state confinement implicating by Fourteenth Amendment due process. Anderson v. Gutschenritter, 836 F.2d 346, 348-49 (7th Cir. 1988); Hines v. Sheahan, 845 F. Supp. 1265, 1267 (N.D. Ill. 1994).

 Among the conditions at issue in Bell was the practice of "double-bunking" inmates in cells designed for only one person. The Court held that this practice did not constitute punishment, reasoning that due process did not include a "one man, one cell" principle. Id. at 541-42. But the Court added:

While confining a given number of people in a given amount of space in such a manner as to cause them to endure genuine privations and hardship over an extended period of time might raise serious questions under the Due Process Clause as to whether those conditions amounted to punishment, nothing even approaching such hardship is shown by this record . . . . We simply do not believe that requiring a detainee to share toilet facilities and this admittedly rather small sleeping space with another person for generally a maximum period of 60 days violates the Constitution.

 Id. at 542-43. This passage from Bell is significant because it suggests that "genuine privations" greater than double-cell confinement for 60 days could amount to punishment for due process purposes.

 Because Bell requires courts to consider whether pretrial detainees' conditions of confinement claims demonstrate that "punishment" took place, courts have had to look somewhere for a definition of "punishment" in this sense. Several courts in this circuit, including this one, have looked to the Eighth Amendment for that definition. See Hines v. Sheahan, 845 F. Supp. 1265, 1267 (N.D. Ill. 1994) (Grady, J.); Antonelli v. Sheahan, 863 F. Supp. 756, 1994 WL 516670, at *2 (N.D. Ill. 1994) (Holderman, J.); Chavis v. Fairman, No. 92 C 7490, 1994 WL 55719, at *7 n.4 (N.D. Ill. Feb. 2, 1994) (Aspen, J.). Under the Eighth Amendment, a litigant may state a claim for "cruel and unusual" punishment related to conditions of confinement if he or she can allege (1) that the conditions were so objectively extreme as to offend society's evolving standards of decency, and (2) that the prison officials subjectively had a state of mind equivalent to at least deliberate indifference to whether the conditions posed a threat of serious harm to the inmate. Wilson v. Seiter, 501 U.S. 294, 298-303, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991).

 This analogy to the Eighth Amendment prohibitions against cruel and unusual punishment does not withstand analysis, however, because the rights of a pretrial detainee are fundamentally different from those of a person who stands convicted. The pretrial detainee cannot be punished at all. See Lock v. Jenkins, 641 F.2d 488, 491 n.7 (7th Cir. 1981) ("The due process clause, forbidding all punishment of pretrial detainees, is thus more inclusive in its protection than the Eighth Amendment, which would allow punishment as long as it is not cruel and unusual.") To say that a pretrial detainee can only complain of conditions that are so intolerable as to qualify as cruel and unusual, and then only if the conditions are the result of a jail official's deliberate indifference to the detainee's welfare, is to ignore this fundamental difference. Nonetheless, although not expressly disavowing the language in Lock, the Seventh Circuit more recently has stated that "punishment is punishment, and there is no reason why the term should mean two different things in the Eighth and Fourteenth Amendment contexts." Salazar v. City of Chicago, 940 F.2d 233, 240 (7th Cir. 1991). In Salazar and other recent pretrial detainee cases, our appeals court has required plaintiffs to allege deliberate indifference on the part of the corrections officials, as is required in Eighth Amendment analysis. Swofford v. Mandrell, 969 F.2d 547, 549 (7th Cir. 1992); Salazar, 940 F.2d at 241; Shelby County Jail Inmates v. Westlake, 798 F.2d 1085, 1093-94 (7th Cir. 1986).

 The awkwardness of grafting a deliberate indifference requirement onto Bell's reasonableness analysis, in a conditions of confinement case concerning pretrial detainees, should be readily apparent. The connection between a condition unrelated to a legitimate objective and "punitive intent" on the part of the person imposing or ignoring the condition may be loose or even absent. In fact, the person's state of mind could be no more than merely negligent, regardless of how unrelated the condition might be to a defensible governmental objective. But if a jail condition or restriction that imposes a genuine deprivation is arbitrary or not reasonably related to a legitimate governmental purpose, that would seem to be enough to make out a due process violation under the rule of Bell. The Seventh Circuit once recognized that the due process clause does not require a showing of deliberate indifference. Matzker v. Herr, 748 F.2d 1142, 1146 (7th Cir. 1984); Kincaid v. Rusk, 670 F.2d 737, 743 n.8 (7th Cir. 1982). In overruling Matzker and Kincaid, our appeals court relied on the principles that mere negligence does not violate due process, that at least intentional or criminally reckless conduct is required, and that "deliberate indifference" is "merely a synonym for intentional or criminally reckless conduct." Salazar, 940 F.2d at 238 (citing Daniels v. Williams, 474 U.S. 327, 333-35, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986); Davidson v. Cannon, 474 U.S. 344, 348, 88 L. Ed. 2d 677, 106 S. Ct. 668 (1986); Archie v. City of Racine, 847 F.2d 1211, 1218-19 (7th Cir. 1988) (en banc), cert. denied, 489 U.S. 1065, 103 L. Ed. 2d 809, 109 S. Ct. 1338 (1989); Duckworth v. Franzen, 780 F.2d 645, 652-53 (7th Cir. 1985), cert. denied, 479 U.S. 816, 93 L. Ed. 2d 28, 107 S. Ct. 71 (1986)).

 Perhaps following the lead of the Supreme Court in Daniels and Davidson, the Seventh Circuit in Salazar did not distinguish between the procedural and substantive components of due process. Procedural due process imposes a requirement of fair procedure for state actions no matter how proper those actions otherwise may be; it is "fundamentally different" from substantive due process, which forbids certain kinds of state actions no matter the fairness of the procedures used to implement them. Daniels, 474 U.S. at 338 (Stevens, J., concurring). In Daniels, a prisoner sued for injuries he suffered when he slipped on a pillow that was negligently left on a prison stairway. Daniels, 474 U.S. at 328. Davidson involved a convicted prisoner who alleged that prison officials negligently failed to protect him from attack by another inmate. Davidson, 474 U.S. at 345-46. The majority opinions in Daniels and Davidson did not discuss whether either petitioner raised a substantive due process claim, as opposed to a procedural due process claim. The Daniels majority stated that negligent conduct could never amount to a "deprivation" of due process, Daniels, 474 U.S. at 330-31, and the Davidson majority read Daniels as holding that "the protections of the Due Process Clause, whether procedural or substantive, are just not triggered by lack of due care by prison officials." Davidson, 474 U.S. at 348. The Daniels and Davidson cases now are widely viewed as a dramatic curtailment of the scope of due process. See Sheldon H. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 § 3.09 at 176-77 (3d ed. 1991) ("Daniels may, moreover, be expected to have a marked impact on those substantive due process cases ...

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