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April 6, 1998


The opinion of the court was delivered by: MORAN


 Plaintiff Bennie Cunningham originally filed a claim on May 15, 1995, alleging that his civil rights were violated by several unnamed deputy U.S. Marshals while he was a prisoner of the State of Illinois and that he was entitled to relief under 42 U.S.C. § 1983. He amended this claim to name the marshals individually on February 5, 1997. The named marshals now move to dismiss Cunningham's claim. For the reasons stated below, we grant their motion in part and deny their motion in part.


 In considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim, we accept all well pled factual allegations in the complaint as true and draw all reasonable inferences from these facts in favor of the plaintiff. Travel All Over the World, Inc. v. The Kingdom of Saudi Arabia, 73 F.3d 1423, 1429 (7th Cir. 1996). Read in this light, the facts are as follows:

 On August 10, 1993, defendant Bennie Cunningham, an Illinois prison inmate in the custody of Illinois state correctional officers, was being temporarily housed in the U.S. Marshal's lockup in the Dirksen Federal Building while waiting to testify as a witness in a fellow inmate's civil rights trial. The marshals in custody of Cunningham were Marguerite Gabele, John O'Malley, Thomas Burke, Kevin O'Malley and William Herr. They placed Cunningham, who wore a zippered jumpsuit, in restraints which restricted his movement to the extent that he was unable to undress sufficiently to use the toilet. He remained in the jumpsuit and restraints from 9:00 a.m. to 4:00 p.m. on August 10, 1993. At some point during the morning of August 10, Cunningham asked the marshals to remove his restraints so that he could use the toilet, but they refused. As a result, plaintiff was forced to urinate and defecate in his clothing.


 A. Motion to Dismiss: Standards

 In order to have a claim dismissed under Rule 12(b)(6) the moving party must meet a high standard. The purpose of a motion to dismiss is to test the sufficiency of a complaint, not its merits. Triad Ass'n Inc. v. Chicago Housing Authority, 892 F.2d 583, 586 (7th Cir. 1989), cert. denied, 498 U.S. 845, 112 L. Ed. 2d 97, 111 S. Ct. 129 (1990). A complaint should not be dismissed for failure to state a claim "unless it appears beyond a reasonable 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, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). In order to withstand a motion to dismiss a complaint must allege facts sufficiently setting forth the essential elements of the cause of action. Gray v. County of Dane, 854 F.2d 179, 182 (7th Cir. 1988). Generally, "mere vagueness or lack of detail does not constitute sufficient grounds for a motion to dismiss." Strauss v. City of Chicago, 760 F.2d 765, 767 (7th Cir. 1985).

 B. Introduction

 Relying on § 1983, plaintiff Cunningham's third amended complaint alleges that the marshals are liable in both their individual and official capacities for violating his constitutional right to be free from cruel and unusual punishment. The marshals have moved to dismiss Cunningham's claim on several alternative grounds. First, they argue that to the extent Cunningham seeks to hold them liable in their official capacities, they are protected by the doctrine of sovereign immunity. Second, they argue that to the extent Cunningham seeks to hold them liable in their personal capacities, he has failed to meet the administrative-remedy exhaustion requirement of the Prisoner Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a). Finally, and in the alternative, they argue that Cunningham has failed to allege that he suffered any physical injury, as required by another section of the Act, § 1997e(e), and that they are consequently not liable in either their individual or official capacities. For the reasons stated below, we grant defendants' motion to dismiss the official-capacity claim, and deny it with respect to the individual-capacity claim.

 C. The Physical Injury Requirement of Section 1997e(e)

 When Cunningham filed his original claim on May 15, 1995, the law at the time provided that prisoners whose federal constitutional rights were violated by state or federal officials had the right to recover for any resulting emotional or psychological injury sustained as a result, regardless of whether there was any accompanying physical injury. Cunningham properly filed his action, claiming only emotional and psychological injuries. Because he did not know the identities of the marshals present on the day of the incident, however, he did not name them as defendants in the original complaint. Rather, he addressed it to "John Doe U.S. Marshals." On April 26, 1996, the Prison Litigation Reform Act of 1995 became effective. The Act eliminated recovery for emotional or psychological injury alone, and instead required plaintiffs to show a physical injury before recovering for these mental damages. On February 5, 1997, Cunningham amended his complaint for the third time, naming each marshal and adding them as defendants in their official and individual capacities. We must determine what law applies to Cunningham's case -- the law in effect at the time of filing or the amended statute in effect at the time Cunningham named the marshals individually.

 Various courts have addressed the issue of whether the Prison Litigation Reform Act, and particularly portions of § 1997e, have retroactive effect. For example, in Wright v. Morris (discussed more comprehensively infra) the Sixth Circuit determined that § 1997e(a), which requires prisoners to exhaust administrative remedies before bringing a Section 1983 action, would not be applied retroactively because Congress had not expressed such intent in the statutory language and because to do so would conflict with the Supreme Court's decision in Landgraf v. USI Film Products, discussed infra. 111 F.3d 414 (1997), cert. denied 118 S. Ct. 263 (1997).

 Similarly, in Weaver v. Clarke, the court ruled that § 1997e(d) (substantially limiting the circumstances in which attorneys representing prisoners are entitled to seek an award of attorneys' fees for such representation) would not be applied to attorneys already representing prisoners at the time the statute became effective, because to hold otherwise would cause "manifest injustice" to ...

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