United States District Court, N.D. Illinois
July 2, 2004.
The opinion of the court was delivered by: PHILIP REINHARD, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, William Mesich, brought pro se a five-count suit
against defendants, Boone County, John Hare, Duane Wirth, Matt
Stenger, Tom Giesecke, Ozare Hunt, Marc Rupert, and Kim Lieder,
pursuant to the First, Fourth, Eighth, and Fourteenth Amendments
of the United States Constitution in addition to 42 U.S.C. § 1983
and § 1985. Wirth is the sheriff and the other individual
defendants are employees at the Boone County jail. This court has
jurisdiction pursuant to 28 U.S.C. § 1331 and § 1343. Defendants
move to dismiss counts I-III in their entirety pursuant to Fed.
R. Civ. P. 12(b)(6), contending that plaintiff has failed to
state a claim upon which relief can be granted. Defendants also
move to dismiss defendants Giesecke, Hunt, Stenger, and Wirth
from counts IV and V, pursuant to Rule 12(b)(6). Plaintiff, who
is represented by stand-by counsel, has not filed a response
despite an order reminding him of the lack of such response and
that the motion to dismiss had been taken under advisement.
On a motion to dismiss under Rule 12(b)(6), the court accepts
as true all well-pleaded factual allegations of the complaint,
drawing all reasonable inferences in the nonmovant's favor.
Vorhees v. Naper Aero Club, Inc. et al., 272 F.3d 398, 401
(7th Cir. 2001). A complaint should be dismissed where it
appears beyond a doubt that the plaintiff can prove no set of
facts that would entitle her to relief. Mattice v. Mem'l Hosp.
of S. Bend, 249 F.3d 682, 684 (7th Cir. 2001).
Plaintiff's factual contentions are that he was arrested and
detained in Boone County three times between February 1999 and
May 2003, all for different criminal conduct. During his first
detention, in 1999, he was reprimanded for not taking his
medication immediately upon receiving it, spending three days in
solitary confinement as consequence and receiving a reduction in
his "good time." When his reduction in "good time" punishment was
lessened, defendant Hare got upset.
During his second detention, in September 2001, plaintiff's
"right wrist was broken." He was also questioned by Officer Ball
(who is not a named defendant) and "another officer" outside of
the jail for 30-45 minutes after requesting counsel be present.
Defendants (plaintiff fails to specify which defendants)
thereafter retaliated by conspiring to injure plaintiff because
he exercised rights and privileges to petition the jail
administration regarding the conditions of his confinement and
also because he embarrassed defendant Hare in 1999 when he
negotiated a reduction in his "good time" penalty. The contended
retaliation included putting plaintiff in the "Drunk Tank" after
he refused to submit fingerprints forcefully taking his
fingerprints, and causing injury.
During his third detention in November 2001 through May 2003,
plaintiff was placed in singlecell isolation and later
transferred to the new Boone County jail, where he was kept in
"lock down" for 18 or more hours a day. On August 22, 2002
plaintiff was attacked in the new jail's "day room" by prisoner
Chris Njos. On August 24, 2002 Njos attacked plaintiff again,
this time at the direction of prisoner Josh Bye, neither of whom
are named defendants, with defendants Giesecke, Hunt, and Stenger
having known or reasonably should have known that the two men
presented a severe threat to plaintiff. Plaintiff alleges
defendants Giesecke, Hunt, and Stenger were indifferent to
plaintiff's safety or held actual malice towards him. On November
12, 2002, while in the Boone County Courthouse lockup, Njos and
Bye again attacked plaintiff when they shared a cell with him.
In count I, plaintiff contends the defendants (plaintiff fails
to specify which defendants) conspired to deprive him of his
civil rights pursuanto 42 U.S.C. § 1985, that defendants violated
his Eighth Amendment right to be free from cruel andinusual
punishment by not protecting him from other inmates, and violated
his First Amendment right to be free from retaliation for filing
his "earlier" grievance, which presumably is the 1999 grievance
he used to seek a reduction in his "good time" penalty. Plaintiff
also alleges his Fourth Amendment right to be free from an
unreasonable search and seizure was violated.
Plaintiff has not stated an allegation of conspiracy. See
Green v. Benden, 281 F.3d 661, 665 (7th Cir. 2002). In the
alternative, the Constitutional violation plaintiff asserts for
retaliation is not cognizable because he has not set forth a
chronology of events from which retaliation may plausibly be
inferred. Zimmerman v. Tribble, 226 F.3d 568, 573 (7th Cir.
2000). The Eighth Amendment violation plaintiff asserts is also
not cognizable because a pretrial detainee is protected by the
Fourteenth Amendment's Due Process Clause rather than the Eighth
Amendment, which applies only to convicted persons. Henderson v.
Sheahan, 196 F.3d 839, 845 (7th Cir. 1999). Likewise,
plaintiff's contention that his Fourth Amendment right against an
unreasonable search and seizure was violated is also not
cognizable. The Fourth Amendment prevents police from searching
and seizing private areas without a warrant absent probable
cause. Wallace v. Batavia Sch. Dist. 101, 68 F.3d 1010, 1012
(7th Cir. 1995). Plaintiff at no time alleges he was
searched, arrested, or otherwise seized by any of the defendants
without probable cause. Consequently, it cannot be said that he
was detained in Boone County detention facilities in violation of
the Fourth Amendment. For the reasons stated, defendants' motion
to dismiss plaintiff's Count I in its entirety pursuant to
Rule 12(b)(6) is granted.
In Count II, plaintiff alleges defendants Hare, Giesecke, Hunt,
Stenger, Lieder, and Rupert violated his civil rights in that
they denied him of his Fourteenth Amendment rights to equal
protection and due process, that they violated his Eighth
Amendment right to be free from cruel and unusual punishment, and
that they violated his Fourth Amendment right to be free from an
unreasonable search and seizure. Plaintiff also alleges somebody
named "Darley" violated his rights in these manners, but does not
state who "Darley" is or mention his/her name in any other part
of the complaint. As a result, Count II and its claims are all
dismissed as they pertain to "Darley."
As for the remaining defendants in the count, plaintiff's equal
protection claim fails because he has not alleged that the
defendants intentionally treated him differently because of his
membership in the class to which he belonged. See Schroeder v.
Hamilton Sch. Dist. et al., 282 F.3d 946, 950 (7th Cir.
2002). Plaintiff also re-alleges his Eighth Amendment, Fourth
Amendment, and retaliation claims from Count I. For the reasons
stated in Count I, plaintiff has not methis burden of stating a
claim for which relief can be granted. For the reasons stated,
defendants' motion to dismiss plaintiff's Count II in its
entirety pursuant to Rule 12(b)(6) is granted.
In Count III, plaintiff alleges defendants (plaintiff fails to
specify which defendants) retaliated against him, violated his
Fourteenth Amendment right to due process, his First Amendment
right to free speech and assembly, and his Eighth Amendment right
to be free from cruel and unusual punishment.
As stated earlier, plaintiff has not properly alleged
retaliation. See Zimmerman, 226 F.3d at 573. Plaintiff also
re-alleges his Eighth Amendment argument from Counts I and II in
Count III. For the reasons stated in Counts I and II, plaintiff
has not alleged an Eighth Amendment violation in Count III.
Pursuant to the Due Process Clause of the Fourteenth Amendment,
plaintiff alleges defendants kept him in solitary confinement
"for a period of one year and three months." A pre-trial detainee
may make a claim for violation of due process where detention
becomes the equivalent of punishment before conviction. Zarnes
v. Rhodes, 64 F.3d 285, 289 (7th Cir. 1995); Henderson,
196 F.3d at 845. The standard for analyzing a pretrial detainee's
Fourteenth Amendment due process claim is identical to the
standard employed in evaluating a convicted inmate's Eighth
Amendment claim of cruel and unusual punishment. McRoy v.
Sheahan et al., 2004 WL 1375527 at *2 (N.D.Ill. Jun. 17, 2004).
Here, even applying the liberal standard under Rule 12(b)(6), the
court cannot discern the nature of plaintiff's claim as it
pertains to his stay in solitary confinement. A bare-bones
allegation of solitary confinement does not give rise to a
Fourteenth Amendment claim. While plaintiff alludes to certain
conditions of confinement while in the "drunk tank," his claim in
Count III does not appear to be based on that confinement. For
the reasons stated, defendants' motion to dismiss Count III
pursuant to Rule 12(b)(6) is granted.
In Count IV, plaintiff contends that the sheriff and the County
are liable under Illinois law for the battery he sustained by
other prisoners. However, no authority exists under Illinois law
to hold the sheriff, personally or in his official capacity, or
the County, liable for battery by fellow prisoners. No authority
exists especially where there is no allegation that the sheriff
had a personal involvement in the battery or that the County had
an official policy that fostered it. See McRoy v. Sheahan et
al., 2004 WL 1375527 at *5. A sheriff must be aware of the
conduct, somehow enable it, approve of it, or pretend it does not
exist to be personally involved. McRoy, 2004 WL 1375527 at *5.
Because plaintiff has not made such an allegation, Count IV is
dismissed in its entirety.
In Count V, plaintiff contends that the sheriff, in his
personal and official capacities, denied him medical treatment,
allowed his wrist and thumb to be broken, and allowed fellow
prisoners to attack him. To the extent the sheriff is sued in his
personal capacity, plaintiff has not alleged his personal
involvement. To the extent the sheriff is sued in his official
capacity, plaintiff has not alleged an official policy that
fostered such conduct. Because plaintiff has not made such
allegations, Count V is dismissed in its entirety.
To the extent that any claim is barred by the two-year statute
of limitations for a cause of action pursuant to § 1983, see
Ashafa v. City of Chicago, 146 F.3d 459, 461 (7th Cir.
1998), or by the one-year limitations period under the Illinois
Local Governmental and Governmental Employees Tort Immunity Act
(745 ILCS 10/8-101 (West 2002)), that basis for dismissal is moot
as the court has dismissed those arguably time-barred claims on
separate bases. Further, a statute of limitations defense
generally cannot be raised pursuant to Rule 12(b)(6). See
United States v. Northern Trust Co., No. 04-1148 & 604-1150,
slip op. at 3 (7th Cir. June 22, 2004).
For the foregoing reasons, the court dismisses all counts of
the amended complaint.
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