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WARE v. FAIRMAN

April 24, 1995

JEFFREY WARE, Plaintiff,
v.
J.W. FAIRMAN, et al., Defendants.



The opinion of the court was delivered by: RUBEN CASTILLO

 Plaintiff, Jeffrey L. Ware, an inmate at Cook County Department of Corrections, 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 of Division VI, James Carey; and, the Director of Cermak Health Services, Lenard Berski. 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 Jeffery L. Ware ("Plaintiff") is and was at all times mentioned herein, in the custody of the Cook County Department of Corrections ("CCDOC"). Currently, he is still confined in the CCDOC. Plaintiff sues James W. Fairman, Executive Director of the Cook County Jail; James Carey, Superintendent of Division VI; and Lenard Berski ("Berski"), Director of Cermak Health Services. Plaintiff is proceeding against defendants in their individual and official capacities.

 Plaintiff claims that the defendants violated his Constitutional rights under the Eighth Amendment. In support of his claim, plaintiff alleges that he was forced to live in overcrowded, cold and unsanitary living conditions while he was a pre-trial detainee at the CCDOC. Plaintiff further alleges that he had to endure roaches, waterbugs, fruitflies and mice while housed at the CCDOC and was denied proper medical attention by CCDOC staff. Plaintiff argues that the totality of these conditions violated his Eighth Amendment right to be free from cruel and unusual punishment.

 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 unartfully 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 particular facts, and these facts show he has no claim, then he has pleaded himself out of court. Thomas v. Farley, 31 F.3d 557, 558 (7th Cir. 1994).

 With respect to the Eighth Amendment violations alleged in this case, the following standards apply. The Supreme Court recently held that to recover under 42 U.S.C. § 1983, an inmate must show the existence of "conditions posing a substantial risk of serious harm," and that the prison official's state of mind was one of "deliberate indifference." Farmer v. Brennan, 128 L. Ed. 2d 811, 114 S. Ct. 1970, 1977 (1994). To demonstrate deliberate indifference, the inmate must show that the prison official knew of and disregarded an excessive risk to inmate health or safety. 114 S. Ct. at 1979. Finally, the Court expressly held that the "Eighth Amendment does not allow cruel and unusual 'conditions'; it outlaws cruel and unusual 'punishment.'" Id.

 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, the inmate 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, 128 L. Ed. 2d 811, 114 S. Ct. 1970, 1977, 1979 (1994) ("deliberate indifference" requires that "the official knows of and disregards an excessive risk to 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). Furthermore, a 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).

 A. Medical Attention

 Plaintiff's main claim is that CCDOC's employees failed to provide him with proper medical attention. Plaintiff alleges that he was denied adequate medical attention because: (1) the CCDOC employees failed to provide him with an asthma inhaler for over a month; (2) he did not receive medication or a medical examination for the flu for two months; (3) he could not obtain acne and rash medication; and (4) he suffers from periodic migraine headaches. Plaintiff also alleges that he suffers from depression, is overstressed, and has been unable to obtain satisfactory psychiatric help at the CCDOC.

 Every claim by an inmate that he has not received adequate medical attention does not constitute a violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 105, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). In order to file a proper claim, an inmate "must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle, 429 U.S. at 105; Salazar v. City of Chicago, 940 F.2d 233, 239 (7th Cir. 1991)). "Deliberate indifference" to the serious medical needs of prisoners constitutes the "unnecessary and wanton infliction of pain proscribed by the Eighth Amendment." Estelle, 429 U.S. at 103 (citing Gregg v. Georgia, 428 U.S. 153, 173, 49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976)). This standard extends to a prisoner's psychological needs as well as his physical needs. Partee v. Lane, 528 F. Supp. 1254, 1260 (N.D. Ill. 1981). However, the test is "one of medical necessity" and not simply what may be desirable. Id. "A pretrial detainee must be provided with medial treatment if a reasonable officer would have considered the injury serious." Murphy v. Walker, 51 F.3d 714, 1995 U.S. App. LEXIS 7542, 1995 WL 144242 (7th Cir. 1995) (per curiam) (citing Davis v. Jones, 936 F.2d 971, 972 (7th Cir. 1991)). However, only intentional or reckless injury amounts to a violation of a pretrial detainee's rights. Negligence is not sufficient. Brownell v. Figel, 950 F.2d 1285, 1290 (7th Cir. 1991). "Reckless conduct" includes "conduct that is so dangerous that the defendant's knowledge of risk can be inferred." Id.

 Plaintiff's allegations fail to raise a reasonable inference of deliberate indifference by the defendants to plaintiff's medical conditions. Although asthma is a serious illness which requires an inhaler, plaintiff does not allege that his inability to obtain an inhaler was the result of deliberate indifference by the defendants. Rather, plaintiff alleges that his asthmatic condition was part of his medical records and that he had a prescription for this inhaler. Without an allegation that plaintiff informed defendants of his need and requested an inhaler from defendants and was refused, or that he submitted a grievance report to defendants after they failed to respond to requests for an inhaler, as he does allege with respect to his claimed need for a blanket and medication for his rash and acne, this Court cannot conclude that defendants were deliberately indifferent to plaintiff's serious medical needs. Cf. Murphy v. Walker, 51 F.3d 714, 1995 U.S. App. LEXIS 7542, 1995 WL 144242 (7th Cir. 1995) (claim that inmate injured his head and requested medical attention which he did not receive constituted sufficient allegation of deliberate indifference to serious medical needs).

 Although plaintiff alleges that he requested treatment and medications for his other medical conditions (i.e., the rash, acne and flu), these conditions are not serious. Under both the Due Process Clause and the Eighth Amendment, pretrial detainees state a claim for inadequate medical treatment if they allege "deliberate indifference to their serious medical needs." Brown v. Figel, 950 F.2d 1285, 1289 (7th Cir. 1991); Salazar v. City of Chicago, 940 F.2d 233, 239 (7th Cir. 1991). The delay in receiving medication for the flu, and the alleged refusal to provide rash and acne medication, even if knowing, cannot be characterized as a "knowing disregard of an excessive risk to [plaintiff's] health and well-being." Murphy, 51 F.3d 714, 1995 U.S. App. LEXIS 7542, 1995 WL 144242 (7th Cir. 1995)(citing Farmer v. Brennan, 128 L. Ed. 2d 811, 114 S. Ct. 1970, 1977 (1994). Moreover, despite these allegations, plaintiff was in fact treated on a number of occasions by the paramedics at the jail for his flu and by doctors at Cermak Hospital's psychiatric ward after his suicide attempts. Although the alleged delay in obtaining medical attention may have been due to negligence, mere negligence does not constitute ...


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