United States District Court, N.D. Illinois
June 25, 2004.
The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Frederick Lambert, a former pre-trial detainee at
the Winnebago County Jail, filed a multi-count complaint against
various defendants, including the sheriff, Richard Meyers, and
two supervisors at the jail, Eddie Houi and Gary Arbisi. The only
claims remaining are those in Counts I, VIII, and XI against
Meyers, Houi, and Arbisi. These three defendants have moved for
summary judgment as to all three remaining counts.
Summary judgment should only be granted when the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. Lucas v. Chicago
Transit Authority, 367 F.3d 714, 720 (7th Cir. 2004). In
ruling on such a motion, the court must construe all facts in a
light most favorable to the non-moving party as well as view all
reasonable inferences in that party's favor. Anderson v. Liberty
Lobby, Inc, 477 U.S. 242, 255 (1986).
In Count I, plaintiff claims he was denied his right to marry
because jail policy did not allow marriages to take place at the
jail. To the extent the policy allowed an inmate to request to be
married in the circuit court, plaintiff claims he was not aware
of the policy which resulted in the effective denial of his right
to be married.
While an inmate has a fundamental right to marry, Turner v.
Safley, 482 U.S. 78 (1987), that right may be limited by sound
penalogical reasons, Williams v. Wisconsin, 336 F.3d 576, 582
(7th Cir. 2003). An incidental interference with the right to
marry, such as the timing or place of the marriage, does not give
rise to a constitutional claim if there is some justification for
the interference. Williams, 336 F.3d at 582. Emotional
distress from such an interference is not actionable by virtue of
42 U.S.C. § 1997e(e). Martin v. Snyder, 329 F.3d 919, 921
(7th Cir. 2003).
In this case, there was no blanket prohibition on plaintiff
getting married while he resided at the jail. All he needed to do
under the policy was arrange a marriage through the local court.
While plaintiff complains that he was not aware of this option,
there is no evidence that it was kept from him or that he
expressed any interest in getting married and that anyone
endeavored to hide the policy from him. Further, as a practical
matter, plaintiff was only in the jail for about a month after he
decided to be married and then was transferred to a state prison
where he was married about nine months later. Such a delay does
not constitute a meaningful denial of his right to marry.
Plaintiff's claim in Count VIII is that he was not allowed to
receive newspapers and magazines delivered to him at the jail by
individuals on three different occasions. Defendants have
asserted the existence of a written policy that only allowed for
newspapers (other than the local paper) and magazines to be
delivered directly from the publisher (publisher only rule).
Plaintiff replies that the policy did not exist and was cooked up
by defendants after the fact as a defense to his claim.
While the Seventh Circuit Court of Appeals has not ruled on the
constitutional validity of a "publishers only rule" as applied to
publications other than hardbound books, the court adopts the
very persuasive reasoning of the district court in Pearson v.
Berge, No. 01-C-0364-C, 2002 WL 32341701 (W.D. Wisc. Aug. 27,
2002), which, relying on Turner v. Safley, 482 U.S. 78 (1987),
and Thornburgh v. Abbott, 490 U.S. 401 (1989), as well as
several decisions of other United States Courts of Appeal, held
that a publishers only rule that applies to newspapers and
magazines is constitutional. Thus, the court finds the policy at
issue here to be constitutional.
As for plaintiff's contention that defendants created the
policy after the fact, the undisputed evidence shows the policy
existed as of the time plaintiff was incarcerated at the jail.
The fact that certain correctional officers could not recall if
such a policy existed does not create a question of material fact
in this regard. Nor has plaintiff pointed to any other evidence
to support his assertion. Thus, the court grants summary judgment
as to Count VIII,
Plaintiff's remaining claims, contained in Count XI, revolve
around his being placed in the observation unit on three separate
occasions. He contends that he was placed in observation without
due process, that he was observed while nude or using the toilet
by female corrections officers and female visitors via the video
monitors located in the control booth, and that derogatory
comments were made by certain corrections officers about the size
of his penis and the odor generated when he defecated.
The undisputed facts here establish that the observation unit
had all the trappings of segregation. A pretrial detainee may be
placed in segregation for punitive purposes only after proper
notice and an opportunity to be heard. Higgs v. Carver,
286 F.3d 437, 439 (7th Cir. 2002). But no such process is
required if he is placed in segregation for preventative or
management reasons. Higgs, 286 F.3d at 439.
Here, it is undisputed that plaintiff's first stint in the
observation unit, which lasted about one week, was purely for
management reasons related to his transfer from state prison.
Once he was processed, he was transferred into general
population. This does not show a valid constitutional claim.
His second assignment to the observation unit began as an
administrative decision as a result of concerns about his
involvement with witness tampering. Following notice and a
hearing, his confinement was extended for thirty days for
disciplinary reasons. No due process violation has been shown in
Finally, plaintiff's third stay in the observation unit began
as an administrative assignment related to another investigation
of alleged telephone threats by plaintiff to another inmate's
mother. This assignment was extended due to the discovery of
contraband in plaintiff's observation cell despite the tight
controls on his activity, which also resulted in the termination
of a correctional officer. This continued assignment of plaintiff
to the observation unit was clearly a proper preventative measure
based on legitimate security concerns that required no due
Plaintiff also has no claim as a matter of law related to the
observation of himself nude or using the toilet by female
correctional officers. See Johnson v. Phelan, 69 F.3d 144
(7th Cir. 1995). There is also no evidence that would support
a reasonable inference that plaintiff was ever actually seen nude
or using the toilet by any female other that corrections
Lastly, a few isolated derogatory remarks about plaintiff's
body or bodily functions, while inappropriate, are simply not
actionable under the Constitution. Moreover, there is no evidence
that any of the three defendants had any knowledge of these
comments let alone participated in or authorized such comments.
The court grants summary judgment on all claims contained in
For the foregoing reasons, the court grants defendants' motion
for summary judgment as to Counts I, VIII, and XI.
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