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United States District Court, N.D. Illinois, Eastern Division

November 18, 2004.


The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge


Andre Ferguson ("Ferguson"), an inmate in custody at Menard Correctional Center ("Menard"), brings this pro se civil rights action pursuant to 42 U.S.C. § 1983 ("Section 1983"), alleging that he had to sleep on the floor when he was in custody at the Cook County Jail ("Jail") earlier this year. This Court's brief November 15, 2004 memorandum order ("Order") has earlier ordered Ferguson to comply with the provisions of 28 U.S.C. § 1915.*fn1 But under the preliminary screening provision of Section 1915A(a) this Court is also required to dismiss this prisoner action if it determines that it is frivolous or malicious or fails to state a claim on which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief (Section 1915A(b)). Here, even when Ferguson's factual allegations are accepted as true, this Court finds that the Complaint fails to state a claim as a matter of law.

But before this opinion turns to that subject, another independent basis for dismissal should be addressed. This Court has been apprised by the staff attorneys' office assigned to deal with prisoner lawsuits that he was previously plaintiff in Case No. 02 C 1063 (which asserted a claim comparable to the present one, based on the conditions affecting Ferguson's earlier sojourn at the Jail) and Case No. 02 C 2077, each of which was also assigned to this Court's calendar. Both cases ended with orders (entered on April 17, 2002) that confirmed that until Ferguson paid the remaining balances of the aggregate $300 in filing fees in the two cases, no further filings would be accepted from him. According to the Clerk's Office records, Ferguson has not complied with that condition, so this Court could properly reject the current Complaint and this action on that basis.

  Even apart from that consideration, however, it has already been indicated that this action is doomed in substantive terms. What follows explains why.

  Ferguson is one of many Jail detainees who have brought pro se complaints over the years, pursuant to Section 1983, relating to having to sleep on the floor at the jail. There is apparently an ill-founded myth at the Jail that inmates who sleep on the floor are entitled to collect damages in federal court.

  To state a conditions-of-confinement claim of constitutional significance, the challenged condition must amount to "punishment" (Bell v. Wolfish, 441 U.S. 520, 535 (1979)). That determination is measured by the same yardstick whether considered in the context of the Due Process Clause or of the Eighth Amendment (Zentmeyer v. Kendall County, Ill., 220 F.3d 805, 810 (7th Cir. 2000)). Punishment in the constitutional sense requires something more than routine discomfort (Rhodes v. Chapman, 452 U.S. 337, 349 (1981)): "genuine deprivations and hardship over an extended period of time" (Bell, 441 U.S. at 542; accord, Hudson v. McMillian, 503 U.S. 1, 8-9 (1992) ("extreme deprivations"); Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1999) (same)).

  Being assigned to sleep on the floor, while undesirable and unfortunate, is not itself enough to give rise to an arguable due process claim of punishment (Hines v. Sheahan, 845 F.Supp. 1265, 1269 (N.D. Ill. 1994); Powell v. Cook County Jail, 814 F.Supp. 757, 759 (N.D. Ill. 1993) and cases cited there). Although Ferguson identifies some unpleasant collateral consequences of that situation, none of them rose (or, perhaps more accurately, fell) to the level of a constitutional violation. Nor does Ferguson allege that any official at the Jail intended maliciously to subject him to pain or suffering (see Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Both the objective condition and the subjective intent of deliberate indifference must be shown to state a Section 1983 claim (Farmer, id.). Finally, as this Court previously advised Ferguson in a memorandum order issued in his first 2002 lawsuit (and as it has repeated in the Order), the "Cook County Jail" is not a suable entity. For the foregoing reasons, this action must be and is dismissed in any event for failure to state a claim upon which relief may be granted. In addition, Ferguson is warned that if any prisoner has had a total of three federal cases or appeals dismissed as frivolous, malicious or failing to state a claim, he may not file another suit in federal court without prepaying the entire $150 filing fee unless he is in imminent danger of serious physical injury (see Section 1915(g)). This is the first of those Section 1915(g) "strikes."

  If Ferguson wishes to appeal this dismissal, he may file a notice of appeal with this Court within 30 days of the entry of judgment (Fed.R. App. P. 4(a)(4)). If Ferguson does choose to appeal, he will be liable for the $255 appellate filing fee (though perhaps in installments under Section 1915) regardless of the outcome of the appeal (Lucien v. Jockisch, 133 F.3d 464, 467 (7th Cir. 1998)). Lastly, if the appeal is found to be nonmeritorious, Ferguson may also accumulate another "strike" under Section 1915(g).*fn2

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