appropriate for consideration on a motion to dismiss.
In light of the Seventh Circuit's imposition of a state-of-mind requirement for these sorts of allegations, Miller must also allege that the defendants acted with deliberate indifference. This he has done as to defendants Sheahan, Fairman and Carey, whose positions as top jail administrators justify the inference (from the pro se complaint's allegations, which are taken as true at this stage of the proceedings) that they knew of the alleged problems with heat and ventilation. Watson v. Sheahan, 1994 U.S. Dist. LEXIS 3249, No. 93 C 1871, 1994 WL 95782, at *2 (N.D. Ill. March 18, 1994) (citing Duncan v. Duckworth, 644 F.2d 653, 655-56 (7th Cir. 1981)). Plaintiff alleges that he specifically told defendant O'Carroll about the heating problems, only to be told: "If you can't deal with the conditions you should get out on bond." As to defendant Clay, plaintiff alleges he informed Clay of the jail's conditions and was told: "We're short of staff and you are no better than the other inmates . . . ." Reading the pro se complaint liberally, the court finds that the complaint sufficiently alleges deliberate indifference.
Finally, Miller alleges in Count I that the defendants violated his due process rights by placing him in segregation for seven days as a disciplinary measure. Miller alleges that he received notice of the charges on November 2, 1992, the same day he received a hearing at which he says he was not allowed to call any witnesses in his defense. This allegation sufficiently states a claim for violation of procedural due process under Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974). If a disciplinary hearing results in disciplinary segregation, the prisoner must have been given at least a 24-hour advance written notice of the hearing and an opportunity to call witnesses unless doing so would jeopardize institutional security. Id. at 563-67.
In addition, the court reads Count I as alleging that defendants Sheahan, Fairman and Carey acted in their official capacities, and therefore defendants are liable only to the extent that their governmental employer is; local governmental entities can be liable only if plaintiff can show that the alleged constitutional deprivations occurred as a result of an official custom or policy. Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Claims that the governmental entity engaged in "'a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with force of law'" are sufficient under Monell. Baxter v. Vigo County School Corp., 26 F.3d 728, 735 (7th Cir. 1994) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127, 99 L. Ed. 2d 107, 108 S. Ct. 915 (1988) (plurality opinion) (internal quotations omitted)). To plead a Monell claim, plaintiff need only provide a "short and plain statement of the claim" that gives defendants notice of allegations of an official policy or custom. Leatherman v. Tarrant County Narcotics Unit, U.S. , 113 S. Ct. 1160, 1193, 122 L. Ed. 2d 517 (1993). Under these pleading standards, Miller has sufficiently pleaded his official Capacity claim that defendants Fairman, Sheahan and Carey have engaged in a regular policy or custom of maintaining the jail in such a fashion as to violate Miller's rights as a pretrial detainee. Miller also has stated a claim against defendants Clay and O'Carroll in their individual capacities. For these reasons, Count I withstands the motion to dismiss.
II. Count II
Pretrial detainees have a Fourteenth Amendment due process right against being subjected by jail guards to excessive force that amounts to punishment. Graham v. Connor, 490 U.S. 386, 395 n.10, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989); Bell v. Wolfish, 441 U.S. 520, 535, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979); Rascon v. Hardiman, 803 F.2d 269, 276-77 (7th Cir. 1986). In this case, Miller alleges that defendant "John Doe #1" beat him severely while defendant "John Doe #2" watched. This appears to be a claim against the unidentified officers in their individual capacities. Count II does not suggest that the officers beat Miller as part of any policy or custom, but it sufficiently states a claim against these two defendants in their individual capacities. On a motion to dismiss, the court takes Miller's allegations as true, and those allegations add up to a claim that the first officer used excessive force in an unprovoked attack that harmed Miller and that was not a good faith effort to restore discipline. The complaint states a claim in this regard as to the second officer as well; the Seventh Circuit has held that a corrections official may not stand idly by while an unconstitutional summary punishment takes place in his presence. Rascon, 803 F.2d at 276.
However, with no allegations that the other defendants were personally involved in the beating, or that such beatings were administered as part of an official custom or policy, Count II must be dismissed as to all defendants except the two John Does. See id. at 274. This partial dismissal will be with prejudice, because the complaint gives the court no reason to believe that Miller could make the necessary allegations to include the other defendants in his excessive force claim.
III. Count III
In Count III, Miller complains that his constitutional right of access to the legal system was violated by the defendants' policy of not paying the postage on mail weighing more than one ounce, even if the mail is important legal correspondence. He states that as a result of the policy, he suffered adverse consequences in Miller v. Fairman, No. 93 C 1505 (N.D. Ill. April 22, 1993), a separate but related case that this court dismissed without prejudice.
This court discussed Count III at the time it considered Miller's application to proceed in forma pauperis. At that time, the court stated:
That dismissal [of case number 93 C 1505] has given rise to Count III of this action. In Count III, plaintiff alleges that certain defendants denied him his right of access to the courts because they delayed and mishandled the mail he had sent to this court for filing in 93 C 1505. The facts as alleged, however, cannot give rise to an arguable claim for denial of access to the courts. To prevail on his claim of denial of access to the courts, plaintiff must show that defendants action resulted in some prejudice to pending or contemplated litigation. Howland v. Kilquist, 833 F.2d 639, 642 (7th Cir. 1987). Plaintiff cannot possibly make such a showing here. The court dismissed 93 C 1505 without prejudice. Because dismissal was without prejudice, plaintiff was free to refile. He has in fact done so in this case. His claims in the earlier case, which are still timely, will now be litigated in this action. Plaintiff therefore cannot show that the delay in processing his mail caused him any actual prejudice. Accordingly, the court denies plaintiff leave to file in forma pauperis on Count III of the complaint and dismisses defendants Williams, Brasier, Valasco and Boyd from the action pursuant to 28 U.S.C. § 1915(d). . . .
Miller v. Fairman, No. 93 C 2997 (N.D. Ill. June 10, 1993).
Count III must be dismissed with prejudice because it fails to state a claim. Fed. R. Civ. P. 12(b)(6). The court's denial of leave to file in forma pauperis was based on its finding that Count III lacked an arguable basis in law or fact. An allegation that lacks an arguable legal basis, under a § 1915(d) analysis, obviously falls far short of stating a claim for relief so as to avoid dismissal under Rule 12(b)(6). Furthermore, the court questions whether service in this case had any effect as to Count III, for which Miller was not allowed to proceed in forma pauperis in the court's order of June 10, 1993. In that order, the court specifically directed, in boldface type, that the defendants who remained in the case should be served with a copy of the order in addition to the complaint. For some reason, defendants move to dismiss Count III as if it were still a part of the case. In any event, Count III fails on its merits and is dismissed with prejudice.
For the foregoing reasons, the defendants' motion to dismiss is granted in part and denied in part. As to Count I, which is an official capacity claim against defendants Sheahan, Fairman and Carey, and an individual capacity claim against defendants O'Carroll and Clay, the motion is denied. Count II's claims against all the named defendants except the "John Doe" corrections officers are dismissed with prejudice, and Count II will be treated as an "individual capacity" claim against the two unidentified officers. Count III is dismissed with prejudice.
DATED: December 19, 1994
John F. Grady, United States District Judge