United States District Court, N.D. Illinois, Eastern Division
May 10, 2005.
ANTONIO PERKINS, Plaintiff,
SHERIFF MICHAEL SHEAHAN, DIRECTOR JOHN MAUL, ASSISTANT DIRECTOR MARCUS LYLES, SUPERINTENDENT MICHAEL HOLMES, LIEUTENANT ROSARIO, SERGEANT POWERS, SERGEANT PANAWA, SERGEANT HORAN, SERGEANT AURENZ, R/O POTEMPA, R/O TORRES, R/O THOMAS, R/O BAILEY and COOK COUNTY, Defendants.
The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORDER
Antonio Perkins, proceeding pro se, has sued defendants
pursuant to 42 U.S.C. § ("section") 1983 for their alleged
violations of his Eighth, First and Fourteenth Amendment rights.
Defendants Sheahan, Maul, Lyles, Holmes, Rosario, Powers, Panawa,
Horan, Potempa, Thomas and Bailey have filed a Federal Rule of
Civil Procedure ("Rule") 12(b)(6) motion to dismiss the claims
asserted against them in the first amended complaint.*fn1
For the reasons set forth below, the motion is granted in part
and denied in part. Facts
On April 9, 2003, plaintiff was incarcerated at the Cook County
Department of Corrections ("CCDOC"), the employer of all of the
defendants. (First Am. Compl. ¶ 9.) On that day, while he was
showering, plaintiff had an argument with Potempa. (Id.) The
argument culminated in plaintiff being beaten by Potempa, Torres,
Powers, Panawa, Thomas, Rosario and Aurenz. (Id.)
On April 11, 2003, plaintiff was again beaten, this time by
Bailey and Thomas. Horan knew his colleagues were beating
plaintiff but did nothing to stop them. (Id. ¶ 12.)
From September 2002 through May 2003, plaintiff and all other
inmates in division II, units A-G and A-H were denied any
recreation. (Id. ¶ 14.) Moreover, plaintiff was given no clean
clothes or bed linen for the entire month of May 2003. (Id. ¶
Plaintiff alleges that he repeatedly asked for grievance forms
but was told there were none available. (Id. ¶ 14.) Plaintiff,
nonetheless, managed to file eleven grievances, only one of which
was ever answered. (Id. ¶ 15.)
On a Rule 12(b)(6) motion to dismiss, the Court accepts as true
all well-pleaded factual allegations of the complaint, drawing
all reasonable inferences in plaintiff's favor. Forseth v. Vill.
of Sussex, 199 F.3d 363, 368 (7th Cir. 2000). No claim will be
dismissed unless "it is clear that no relief could be granted
under any set of facts that could be proved consistent with the
allegations." Hishon v. King & Spalding, 467 U.S. 69, 73
Defendants say that plaintiff's claims must be dismissed
because he failed to comply with the Prisoner Litigation Reform
Act ("PLRA"). That statute requires prisoners to exhaust "such
administrative remedies as are available" before filing a section
1983 suit. 42 U.S.C. § 1997e(a). Though plaintiff does not explicitly allege that he filed
grievances on each of his claims, that is a reasonable inference
that can be drawn from his first amended complaint. (See First
Am. Compl. ¶ 15 (alleging that he filed eleven grievances).) All
but one of those grievances, plaintiff alleges, were ignored by
CCDOC officials. (Id.) Because he pursued the CCDOC's
administrative procedures as far as he could, plaintiff contends
that he has satisfied the exhaustion requirement.
Defendants say the jail officials' alleged inaction does not
excuse plaintiff from the exhaustion requirement. In their view,
detainees are required to pursue administrative procedures, even
if the relief they seek is unavailable administratively. While
that is true, see Booth v. Churner, 532 U.S. 731, 741 (2001)
(stating that PLRA mandates exhaustion "regardless of the relief
offered through administrative procedures"), it is also
irrelevant. Plaintiff is not making a futility argument. Rather,
he claims that he was prevented from exhausting his remedies by
the jail officials' refusal to provide forms to him and otherwise
participate in the process. In such cases, our court of appeals
has said, administrative remedies are unavailable and the
exhaustion requirement is met. See Lewis v. Washington,
300 F.3d 829, 833 (7th Cir. 2002) ("[W]e refuse to interpret the PLRA
so narrowly as to permit prison officials to exploit the
exhaustion requirement through indefinite delay in responding to
grievances.") (internal quotation marks, alterations and citation
omitted). Because it is reasonable to infer that plaintiff
exhausted the administrative remedies that were available to him,
defendants' motion to dismiss for failure to comply with the PLRA
Even if they are not procedurally barred, defendants contend
that the claims asserted against Sheahan, Maul, Lyles and Holmes
must still be dismissed because they are substantively infirm. In
Count III, plaintiff asserts official capacity claims against
these defendants for violating his Eighth Amendment rights by
refusing to provide him with clean clothes and linen and
violating his First and Fourteenth Amendment rights by hindering
him from filing his civil rights claims. (See First Am. Compl. ¶¶ 25-27.) In Count IV, incorrectly labeled Count VI,
plaintiff apparently asserts individual capacity claims against
these defendants for the same conduct.*fn2 (See id. ¶¶
28-29.) Defendants contend that plaintiff has not alleged the
elements required for either kind of claim.
An official capacity claim against a government official is
really just a claim against the entity that employs him, in this
case, Cook County. Kentucky v. Graham, 473 U.S. 159, 165-66
(1985). Cook County can be held liable under section 1983 only if
it deprived plaintiff of his constitutional rights pursuant to
one of its policies, customs or practices. Monell v. Dep't of
Soc. Servs. of City of N.Y., 436 U.S. 658, 694 (1978). Plaintiff
can allege a policy within the meaning of Monell by: 1)
identifying an express policy that caused the alleged
constitutional violation; 2) alleging the existence of a practice
so widespread and permanent that it constitutes a custom or
usage; or 3) alleging that his injuries were caused by a person
with final policy-making authority. Baxter ex rel. Baxter v.
Vigo County Sch. Corp., 26 F.3d 728, 734-35 (7th Cir. 1994).
Plaintiff opted for the second route. He alleges that the
County regularly denied inmates clean linen and prevented them
from filing grievances. Though conclusory, those allegations
sufficiently allege a "policy" within the meaning of Monell. See
Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002) ("A complaint
that complies with the federal rules of civil procedure cannot be
dismissed on the ground that it is conclusory or fails to allege
facts."); McCormick v. City of Chi., 230 F.3d 319, 325 (7th
Cir. 2000) (stating that "pro se complaints are to be liberally
construed and not held to the stringent standards expected of
pleadings drafted by lawyers").
Even if the County did deny inmates clean linen, defendants say
that the practice did not violate plaintiff's Eighth Amendment
rights. Plaintiff's rights were violated only if he suffered a
serious deprivation and defendants acted with deliberate indifference.
Farmer v. Brennan, 511 U.S. 825, 834 (1994). A deprivation is
serious within the meaning of Farmer only if it denies the
inmate "the minimal civilized measure of life's necessities."
Id. (internal quotation marks and citation omitted). Defendants
contend that a thirty-day denial of clean linen is not a serious
deprivation within the meaning of Farmer.
The Court agrees. Being denied clean clothes and bedding for
thirty days, though unpleasant, is not a deprivation serious
enough to support an Eighth Amendment claim. See, e.g., Moss v.
DeTella, No. 96 C 5398, 1997 WL 24745, at *2 (N.D. Ill. Jan. 16,
1997) (holding that lack of clean clothes and bedding for 111
days did "not rise to the level of a constitutional violation");
Coughlin v. Sheahan, No. 94 C 2863, 1995 WL 12255, at *3 (N.D.
Ill. Jan. 12, 1995) (allegation that prisoner was provided only
one change of clothing in a three-month period did not support
Eighth Amendment claim). Thus, any Eighth Amendment claim based
on the lack of clean clothing and bedding must be dismissed.
Plaintiff's access to court claims suffer the same fate.
"Prisoners have a constitutional right of access to the courts
that, by necessity, includes the right to pursue the
administrative remedies that must be exhausted before a prisoner
can seek relief in court." DeWalt v. Carter, 224 F.3d 607, 618
(7th Cir. 2000). To state a claim for violation of that right,
plaintiff must allege that "prison officials failed to assist in
the preparation and filing of meaningful legal papers" and that
he suffered "some quantum of detriment" as a result. Lehn v.
Holmes, 364 F.3d 862, 868 (7th Cir. 2004) (internal quotation
marks and citation omitted). Plaintiff has alleged the former
element, (see First Am. Compl. ¶¶ 14, 26-27), but not the
latter. Because plaintiff has not alleged that defendants'
conduct prevented him from filing, caused the dismissal of, or
otherwise impeded him from pursuing his civil rights claims, he
has not stated a claim for violation of his right of court
access. See Lehn, 364 F.3d at 868 (stating that right of access claim is viable only if prisoner
shows that he was "hampered [in his] pursuit of a legal
For the reasons stated above, defendants' Rule 12(b)(6) motion
to dismiss the First Amended Complaint [doc. no. 28] is granted
in part and denied in part. The motion is granted as to: (1) the
Eighth Amendment claims plaintiff asserts against defendants
Sheahan, Maul, Lyles and Holmes in Counts III and IV that are
based on the denial of clean clothes and linen, which are
dismissed with prejudice; (2) the denial of access to court
claims that plaintiff asserts against defendants Sheahan, Maul,
Lyles and Holmes in Counts III and IV, which are dismissed
without prejudice. In all other respects, the motion is denied.
The Court also dismissed without prejudice any claims plaintiff
asserts against defendants Aurenz, Torres and Cook County,
pursuant to Rule 4(m). Plaintiff's motion for appointment of
counsel [doc. no. 31] is granted.