United States District Court, N.D. Illinois, Eastern Division
November 18, 2004.
ANDRE FERGUSON, Plaintiff,
COOK COUNTY JAIL, Defendant.
The opinion of the court was delivered by: MILTON SHADUR, Senior District Judge
MEMORANDUM OPINION AND ORDER
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
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
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