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ASKEW v. FAIRMAN

March 22, 1995

CHRISTOPHER ASKEW, Plaintiff,
v.
J.W. FAIRMAN, et al., Defendant.



The opinion of the court was delivered by: RUBEN CASTILLO

 Plaintiff, Christopher Askew, an inmate at Menard Correctional Center, has filed a civil rights action, pursuant to 42 U.S.C. § 1983, against the Executive Director of the Cook County Department of Corrections, James W. Fairman, the Superintendent, Benny Caldwell, Lt. Hopkins and Correctional Officer Stokes. Plaintiff is proceeding pro se and seeks compensatory and punitive damages for the alleged violations of his constitutional rights. Defendants have moved to dismiss plaintiff's claim under Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, defendants' motion is granted.

 FACTS

 The facts recited below are taken from plaintiff's pleadings, which the court assumes to be true for purposes of this opinion. Plaintiff Christopher Askew ("Askew") is and was at all times mentioned herein, in the custody of the Cook County Department of Corrections ("CCDOC"). Currently, he is confined in the Menard Correctional Center ("Menard") in Menard, Illinois. Plaintiff sues James W. Fairman, the Executive Director of the CCDOC; Benny Caldwell and Lt. Hopkins, Superintendents; and, Stokes, a correctional officer. Additionally, plaintiff sues Dunagan, Zurrick, Rozario, and Figueroa. Plaintiff is proceeding against defendants in their individual and official capacities. (Compl. Legal Claims).

 Plaintiff claims that the defendants violated his constitutional rights under the Eighth Amendment. In support of his claim, plaintiff recites numerous conditions of his confinement while he was a pre-trial detainee at the CCDOC in which he was forced to sleep on the floor, which was unclean, for months on end during the cold winter months. Askew argues that the totality of these conditions violated his Eighth Amendment to be free from cruel and unusual punishment. (Compl. P 1).

 DISCUSSION

 When considering a motion to dismiss, the court views all facts alleged in the complaint, as well as any inferences reasonably drawn therefrom, in a light most favorable to the plaintiff. Mosley v. Klincar, 947 F.2d 1338, 1339 (7th Cir. 1992). A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). Since plaintiff appears pro se, his complaint, however inartfully pleaded, must be construed liberally and held to less stringent standards than those applied to complaints drafted by attorneys. Haines v. Kerner, 404 U.S. 519, 521, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972). However, although a plaintiff's pro se complaint is to be liberally construed under Haines, the plaintiff is still required to meet some "minimum standard of particularity." Tarkowski v. Bartlett Realty Co., 644 F.2d 1204, 1207 (7th Cir. 1980). Finally, if a plaintiff does plead particulars, and they show he has no claim, then he has pleaded himself out of court. Thomas v. Farley, 31 F.3d 557, 558 (7th Cir. 1994).

 1. Conditions in CCDOC

 When considering an Eighth Amendment challenge to conditions of confinement, the court must examine the totality of the conditions. Rhodes v. Chapman, 452 U.S. 337, 363, 69 L. Ed. 2d 59, 101 S. Ct. 2392 (1981). In order to state a claim under the Eighth Amendment, he must show that, objectively, the conditions were serious enough to be considered cruel and unusual. Wilson v. Seiter, 501 U.S. 294, 299, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991). Second, if the plaintiff has satisfied the first element, he must know from a subjective point of view that the defendants acted with deliberate indifference. Id. Farmer v. Brennan, 114 S. Ct. 1970, 1977, 1979 (1994) ("deliberate indifference "requires that "the official knows of the disregards an excessive risk in inmate health or safety...."). Conditions of confinement violate the Eighth Amendment when the conditions result in "unquestioned and serious deprivations of basic human needs" or "deprive inmates of the minimal civilized measure of life's necessities." Hudson v. McMillian, 503 U.S. 1, 112 S. Ct. 995, 1000, 117 L. Ed. 2d 156 (1992); Rhodes, 452 U.S. at 347; Jamison-Bey v. Thieret, 867 F.2d 1046, 1048 (7th Cir. 1989). Further, plaintiff must allege more than a mere discomfort or inconvenience as a result of confinement. Caldwell v. Miller, 790 F.2d 589, 601 (7th Cir. 1986). "Inmates cannot expect the amenities, conveniences and services of a good hotel." Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988).

 The plaintiff alleges the following factual bases for this claim. First, plaintiff was forced to sleep on the floor in October of 1990 for approximately one week, and from December 24, 1990 until approximately July of 1991; then, in September of 1991 he was moved to another cell which housed only one bunk and which was already occupied. Consequently, he was forced to sleep on the floor until he was issued a bunk in August of 1992. In short, the plaintiff was forced to sleep on the floor at various times from October 3, 1990 through November 25, 1992, during his incarceration. Second, the floor was infested with mice, roaches and other vermin which were constantly roaming around the floor. Third, the defendants placed plaintiff on various tiers where there were no cells available, again forcing plaintiff to sleep on the floor. Fourth, the floor temperature was approximately 35 degrees during the winter months. Fifth, the CCDOC was overcrowded. The plaintiff alleges that all of these conditions violate the Eighth Amendment.

 Plaintiff alleges that a pre-trial detainee is given, upon arrival at CCDOC, one mattress, one pillow, one pillow case and two sheets. However, he along with other detainees who chose not to litigate, did not receive these "essential necessities." (Pl. response "conditions of confinement") Instead, plaintiff alleges that he was forced to sleep on the floor in the cold winter months. *fn1"

 In Del Raine v. Williford, 32 F.3d 1024 (7th Cir. 1994), the Seventh Circuit indicated that a pro se plaintiff must plead allegations which "create a possible inference that he was routinely placed in a cell with unreasonably low temperatures and without adequate clothing" to show that the Eighth Amendment deprivation asserted is one of "constitutional magnitude." See also, Hudson, 112 S. Ct. at 999; Wilson, 111 S. Ct. at 2323. Plaintiff has not pled allegations which create a possible inference that he was placed in cells with unreasonable temperatures, even though he was forced to sleep on the floor during the cold Chicago winter months.

 The conditions complained of are not serious enough to be considered cruel or unusual punishment, because these conditions do not result in a serious deprivation of basic human needs. The conditions, although perhaps unsanitary and uncomfortable, do not deprive plaintiff of the minimal civilized measure of life necessities. Plaintiff alleges that he "missed much rest" due to the severe discomfort of the cold floors on which he was forced to sleep. Plaintiff also alleges that he suffered great mental anguish and agony as a result of the unsanitary and uncomfortable conditions. The conditions plaintiff complains of do not pose a "substantial risk of serious harm." Farmer v. Brennan, 128 L. Ed. 2d 811, 114 S. Ct. 1970, 1977 (1994). Furthermore, the "Eighth Amendment does not outlaw cruel and unusual ...


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