United States District Court, S.D. Illinois
August 11, 2005.
KENDRICK HARRIS, Plaintiff,
GIAVANNIE MORRIS, EAST ST. LOUIS POLICE DEPT., CITY of EAST ST. LOUIS, and UNKNOWN PARTIES, Defendants.
The opinion of the court was delivered by: DAVID HERNDON, District Judge
MEMORANDUM AND ORDER
Plaintiff brings this action for deprivations of his
constitutional rights pursuant to 42 U.S.C. § 1983. He has filed
a motion for leave to proceed in forma pauperis (Doc. 2), and
the Court finds that he is, in fact, indigent. See
28 U.S.C. § 1915. Therefore, this motion is GRANTED.
Plaintiff has also filed a motion to amend his complaint (Doc.
4); he wishes to include Danielle Moore as a defendant. Federal
Rule of Civil Procedure 15(a) dictates that leave to amend a
pleading "shall be given whenever justice so requires." However,
[a]mended pleadings and supplemental pleadings shall
contain all allegations which a party intends to
pursue. All new material in the amended pleadings
shall be underlined. The original of the amended
pleading shall be attached to the motion to amend the
pleading so that it may be filed if the motion to
amend is granted.
Local Rule 15.1; see FED.R.CIV.P. 15. The instant motion is not
accompanied by a proposed amended complaint detailing all of
Plaintiff's claims against each defendant. Therefore, this motion
is DENIED without prejudice. If Plaintiff wishes to file an
amended complaint to include Moore, he may file another such
motion, along with his proposed amended complaint. This case is now before the Court for a preliminary review of
the complaint pursuant to 28 U.S.C. § 1915(e)(2), which provides:
Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court shall
dismiss the case at any time if the court determines
(A) the allegation of poverty is untrue; or
(B) the action or appeal
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be
(iii) seeks monetary relief from a defendant who is
immune from such relief.
An action or claim is frivolous if "it lacks an arguable basis
either in law or in fact." Neitzke v. Williams, 490 U.S. 319
325 (1989). Upon careful review of the complaint and any
supporting exhibits, the Court finds it appropriate to exercise
its authority under § 1915(e)(2); portions of this action are
frivolous and thus subject to summary dismissal.
Plaintiff states that on June 11, 2003, he was arrested in East
St. Louis. He alleges that during his arrest, he was struck by an
automobile, but police officers would not take him to the
hospital. He further alleges that after his arrest, he was not
allowed to call his attorney, and he was held for over 72 hours
without a probable cause hearing. He also claims that he was held
in a cold air-conditioned cell without a blanket; his cell had no
running water, the toilet did not function properly, and there
were rats and bugs in the jail. He claims that all of these
actions or inactions were in retaliation for a prior lawsuit he
had filed against the City of East St. Louis, which was settled
in his favor for $2,500. See Harris v. East St. Louis Police
Dept., Case No. 01-cv-747-MJR (S.D. Ill., filed Nov. 9, 2001).
To state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of the
United States, and must show that the alleged deprivation was committed by a person acting under color of state law. West v.
Atkins, 487 U.S. 42, 48 (1988). Generally, confinement of
pretrial detainees may not be punitive, because "under the Due
Process Clause, a detainee may not be punished prior to an
adjudication of guilt." Bell v. Wolfish, 441 U.S. 520, 535
(1979). Thus, conditions of pretrial confinement must be
"reasonably related to a legitimate governmental objective."
Id. at 539. See also Murphy v. Walker, 51 F.3d 714, 717
(7th Cir. 1995); Brownell v. Figel, 950 F.2d 1285 (7th
In a case involving conditions of confinement in a prison, two
elements are required to establish violations of the Eighth
Amendment's cruel and unusual punishments clause. First, an
objective element requires a showing that the conditions deny the
inmate "the minimal civilized measure of life's necessities,"
creating an excessive risk to the inmate's health or safety.
Farmer v. Brennan, 511 U.S. 825, 834 (1994). The second
requirement is a subjective element establishing a defendant's
culpable state of mind. Id.
Although the conditions at the jail described by Plaintiff were
unpleasant, "[t]he conditions of imprisonment, whether of
pretrial detainees or of convicted criminals, do not reach even
the threshold of constitutional concern until a showing is made
of `genuine privations and hardship over an extended period of
time.'" Duran v. Elrod, 760 F.2d 756, 759 (7th Cir. 1985).
Lapses from minimum standards of sanitation may be excusable
where such conditions are temporary and affect only a few
individuals. Lunsford v. Bennett, 17 F.3d 1574, 1580 (7th
Cir. 1994); Harris v. Fleming, 839 F.2d 1232 (7th Cir.
1988). Further, Plaintiff does not allege any harm to his health
as a result of these conditions. See 42 U.S.C. § 1997e(7)(e)
("No Federal civil action may be brought by a prisoner confined
in a jail, prison, or other correctional facility, for mental or
emotional injury suffered while in custody without a prior
showing of physical injury."). Finally, the complaint is devoid of any allegations that any Defendant acted with the
requisite mental intent of deliberate indifference to Plaintiff's
health in creating or maintaining these conditions.
Therefore, regarding the conditions of confinement in the jail,
Plaintiff has failed to state a claim upon which relief may be
granted. Accordingly, these claims are dismissed from this action
Plaintiff's other claims failure to provide medical treatment
following the car accident and deprivations of his constitutional
rights following his arrest are more troubling, particularly in
light of his prior dealings with the East St. Louis police
department. The Seventh Circuit has made it clear that prison
officials or, in this case, city jail officials, may not
retaliate against an inmate for exercising his First Amendment
rights, even if their actions would not independently violate the
Constitution. See Zimmerman v. Tribble, 226 F.3d 568, 573
(7th Cir. 2000); DeWalt v. Carter, 224 F.3d 607, 618
(7th Cir. 2000) ("a prison official may not retaliate against
a prisoner because that prisoner filed a grievance"); Babcock v.
White, 102 F.3d 267, 275 (7th Cir. 1996) (retaliatory
transfer); Higgason v. Farley, 83 F.3d 807, 810 (7th Cir.
1996) (retaliation for filing lawsuit); Murphy v. Lane,
833 F.2d 106, 108-09 (7th Cir. 1987) (per curiam) (same).
Therefore, the Court is unable to dismiss these claims at this
point in the litigation. See 28 U.S.C. § 1915(e)(2).
Plaintiff names the East St. Louis Police Department as a
defendant in this action, yet the Eleventh Amendment to the
Constitution bars individuals from bringing suit in federal court
against a state or its agencies in their own names. See Brunken
v. Lance, 807 F.2d 1325, 1329 (7th Cir. 1986). Further,
states and their agencies are not "persons" susceptible to suit
under § 1983. Will v. Michigan Department of State Police,
491 U.S. 58 (1989). This includes city police departments. U.S. ex rel Lee v. People of State of Ill., 343 F.2d 120, 120
(7th Cir. 1965). See also Dean v. Barber, 951 F.2d 1210
(11th Cir. 1992); Henschel v. Worcester Police Dept.,
Worcester, Mass., 445 F.2d 624 (1st Cir. 1971); Reese v.
Chicago Police Dept., 602 F.Supp. 441 (N.D. Ill. 1984).
Therefore, the East St. Louis Police Department is dismissed from
this action with prejudice.
Finally, Plaintiff has filed two purported supplements to the
complaint. In the first (Doc. 5), he states that, as of February
2005, he had yet to be convicted of the charges for which he was
arrested. This information has no bearing on Plaintiff's claims
regarding his treatment while in custody and, therefore, this
supplement is STRICKEN from the record.
Plaintiff's second supplement (Doc. 6) seems to be an attempt
to add a claim of excessive force against Officer Fennoy
regarding an incident that occurred on February 15, 2005.
However, Fennoy is not named as a defendant in this action, and
Plaintiff has not submitted an amended complaint which includes
Fennoy and contains all of his allegations against all
defendants. Therefore, this supplement is also STRICKEN from
IT IS HEREBY ORDERED that Plaintiff's claims regarding the
general conditions at the jail are DISMISSED from this action
IT IS FURTHER ORDERED that the EAST ST. LOUIS POLICE
DEPARTMENT is DISMISSED from this action with prejudice.
The Clerk is DIRECTED to prepare Form 1A (Notice of Lawsuit
and Request for Waiver of Service of Summons) and Form 1B (Waiver of Service of Summons)
for Defendants GIAVANNIE MORRIS and the CITY of EAST ST.
LOUIS. The Clerk shall forward those forms, USM-285 forms
submitted by the Plaintiff, and sufficient copies of the
complaint to the United States Marshal for service.
The United States Marshal is DIRECTED, pursuant to Rule
4(c)(2) of the Federal Rules of Civil Procedure, to serve process
on Defendants GIAVANNIE MORRIS and the CITY of EAST ST. LOUIS
in the manner specified by Rule 4(d)(2) of the Federal Rules of
Civil Procedure. Process in this case shall consist of the
complaint, applicable forms 1A and 1B, and this Memorandum and
Order. For purposes of computing the passage of time under Rule
4(d)(2), the Court and all parties will compute time as of the
date it is mailed by the Marshal, as noted on the USM-285 form.
Service shall not be made on the Unknown Defendants until such
time as Plaintiff has identified them by name on a USM-285 form
and in a properly filed amended complaint. Plaintiff is ADVISED
that it is Plaintiff's responsibility to provide the Court with
the names and service addresses for these individuals.
With respect to former employees of East St. Louis who no
longer can be found at the work address provided by Plaintiff,
the City shall furnish the Marshal with the Defendant's
last-known address upon issuance of a court order which states
that the information shall be used only for purposes of
effectuating service (or for proof of service, should a dispute
arise) and any documentation of the address shall be retained
only by the Marshal. Address information obtained from the City
pursuant to this order shall not be maintained in the court file,
nor disclosed by the Marshal.
The United States Marshal shall file returned waivers of
service as well as any requests for waivers of service that are returned as undelivered as soon as
they are received. If a waiver of service is not returned by a
defendant within THIRTY (30) DAYS from the date of mailing the
request for waiver, the United States Marshal shall:
Request that the Clerk prepare a summons for that
defendant who has not yet returned a waiver of
service; the Clerk shall then prepare such summons as
Personally serve process upon the defendant
pursuant to Rule 4 of the Federal Rules of Civil
Procedure and 28 U.S.C. § 566(c).
Within ten days after personal service is effected,
the United States Marshal shall file the return of
service for the defendant, along with evidence of any
attempts to secure a waiver of service of process and
of the costs subsequently incurred in effecting
service on said defendant. Said costs shall be
enumerated on the USM-285 form and shall include the
costs incurred by the Marshal's office for
photocopying additional copies of the summons and
complaint and for preparing new USM-285 forms, if
required. Costs of service will be taxed against the
personally served defendant in accordance with the
provisions of Fed.R.Civ.P. 4(d)(2) unless the
defendant shows good cause for such failure.
Plaintiff is ORDERED to serve upon defendant or, if
appearance has been entered by counsel, upon that attorney, a
copy of every further pleading or other document submitted for
consideration by this Court. He shall include with the original
paper to be filed with the Clerk of the Court a certificate
stating the date that a true and correct copy of any document was
mailed to defendant or his counsel. Any paper received by a
district judge or magistrate judge which has not been filed with
the Clerk or which fails to include a certificate of service will
be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate
responsive pleading to the complaint, and shall not waive filing
a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this cause is REFERRED to
a United States Magistrate Judge for further pre-trial
proceedings. Further, this entire matter is hereby REFERRED to a United
States Magistrate Judge for disposition, as contemplated by Local
Rule 72.2(b)(2) and 28 U.S.C. § 636(c), should all the parties
consent to such a referral.
Plaintiff is under a continuing obligation to keep the Clerk
and each opposing party informed of any change in his
whereabouts. This shall be done in writing and not later than
seven (7) days after a transfer or other change in address
IT IS SO ORDERED.