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Banks v. Cook County

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

February 18, 2014

LARRY M. BANKS, Plaintiff,


MATTHEW F. KENNELLY, District Judge.

Larry Banks, who at the time was a pretrial detainee in the Cook County Jail, filed this pro se lawsuit in late March 2012. He paid the filing fee in full.

Banks initially sued Chicago Mayor Rahm Emanuel, the City of Chicago, Cook County Board President Toni Preckwinkle, Cook County, and Sheriff Thomas Dart. His complaint concerned the quality of drinking water at the Jail. Banks alleged that the water had "little particles" in it and that "[e]very time I drink the water I get headaches, dry mouth, cold and hot flashes, weight loss, sleep deprivation/psychological [symptoms]." Compl. ¶¶ 12 & 16. Banks alleged that in response to grievances, he was told by Jail officials that "it's not on Cook County that the water is poisonous." Id. ¶ 11. Banks further alleged that the Jail's water is supplied by the City and that "it is common knowledge that the water coming from Lake Michigan isn't safe to drink." Id. ¶ 15. He cited an article from the Chicago Sun Times and unidentified studies and alleged that he and others at the Jail are at serious risk of harm. He stated that the defendants had turned a blind eye to this problem. Banks attached to his complaint a response to a grievance in which a Jail official stated that the water is provided by the City's water department and that the Jail has no reason to believe that the water does not comply with state and federal water quality standards.

The Court reviewed Banks's complaint as required by the Prison Litigation Reform Act, 28 U.S.C. § 1915A. On April 12, 2012, the Court entered an order dismissing the complaint without prejudice. The Court concluded that Banks's claim that the water supplied to the entire city (including the Jail) is unsafe was not plausible and that his allegations of "extreme and immediate medical issues" caused by the water "defie[d] logic and reason." Order of Apr. 12, 2012 at 1. The Court stated that unless Banks submitted, by May 7, 2012, a motion to amend with an amended complaint stating a plausible claim, the Court would enter final judgment. Id.

In response, Banks submitted an amended complaint that abandoned his claims about water quality at the Jail and asserted completely different claims relating to alleged violations of his right to practice his religion and his inability to receive a diet consistent with his religion. At the same time, he filed a motion asking to "drop the suit against Mayor Emmanuel [sic] et al. without prejudice." See dkt. no. 9. The Court granted the latter motion and dismissed the case, advising Banks that he could not use this case to assert completely unrelated claims. See Order of May 4, 2012.

On May 16, 2012, Banks submitted a motion to reopen the suit and, two weeks later, submitted a proposed second amended complaint. He dropped the City and Mayor Emanuel as defendants and named only the County, President Preckwinkle, and Sheriff Dart. In this version of the complaint, Banks said the water "comes out [of] the sink brown, and is undrinkable at times." 2d Am. Compl. at 4. He said that the water caused him to break out with rashes, dry mouth, and boils. He alleged that in response to grievances, Jail officials said the water was from Lake Michigan and that any problems were the City's fault. Banks alleged that Jail officials were aware the water was undrinkable but had turned a blind eye. Banks stated, "the water has different items in it that make it unsafe to drink. I had the water tested myself, and it came back with different poisons in it. I have the test to submit as evidence." Id. at 5.

The Court assessed Banks's second amended complaint in an order dated October 9, 2012. The Court noted Banks's statement that he had tested the water and relied on it to conclude that "it is plausible that some defect at the Jail is causing contamination of the water." Order of Oct. 9, 2012 at 1. The Court dismissed Preckwinkle as a defendant due the fact that the Jail is run by the Sheriff, not the County Board, but permitted the case to proceed against Sheriff Dart and the County. Id.

As the case progressed, Banks filed a motion in February 2013 asking to have independent testing done of the water. His motion alleged:

1. Plaintiff had the water tested before, and the water came back with 30 different item [sic], which cause cancer.
2. Plaintiff shows the court that a second test has been tested, and it [sic] the same thing, which cause cancer.
3. Plaintiff need [sic] the court to allow an agency of my choosen [sic] to come into Cook County, and get the water tested from my room, because, it's the water that [sic] coming out of [sic] sink, and shower areas of the Jails....

Mot. to Have Water Tested (etc.) ¶¶ 1-3 (dkt. no. 42). Banks offered to pay for the testing himself.

Defendants objected to Banks's motion. They cited his earlier allegations that he had tested the water twice and said that the proposed third test was "repetitive and unnecessary because he already had the water tested, as represented to the Court. Furthermore, Plaintiff claims that he already has water test results to present as evidence." Defs.' Resp. to Pl.'s Mot. to Have Water Tested at 1 (dkt. no. 47). Defendants also argued that allowing outside persons access to a jail cell would pose a risk to institutional safety. Id. at 2. Defendants closed by saying, "Either Plaintiff has misrepresented to the Court that he already had the water tested twice and that he has the test results or Plaintiff is improperly seeking repetitive and unnecessary discovery as a way to harass Defendants and threaten the security of the Cook County Jail." Id.

Banks filed a reply in mid-March 2013. With regard to the availability of his earlier alleged tests, Banks stated:

Plaintiff had the water tested, and the water items were place [sic] in an individual [sic] hands, which is no longer in communication with the Plaintiff any longer. Plaintiff states that [defendants' attorney] misspeaks when she said I had the water tested two times. I'm paying for the tests to be done by a private company, and this bears no cost against Cook County Jail nor the State Attorney's Office.

Pl.'s Resp. to Defs.' Resp. at 1-2. Banks disputed defendants' claims regarding security (noting, among other things, that outside pest control workers come into the Jail frequently), and he said "[t]he reason I want to choose the company [to do the testing] is so that I may have a company who has nothing to hide or lie about." Id. at 2.

Shortly after this, Banks's pending criminal case concluded, and he was taken to the Illinois Department of Corrections to serve a short amount of additional time. In late May 2013, the Court entered an order ruling on a number of discovery-related motions filed by the parties, including the water testing motion. See Order of May 22, 2013. On that motion, the Court stated,

The Court grants this motion, subject to making appropriate arrangements. The fact that plaintiff claims he has already had the water tested (defendants' main argument against the motion) is not a dispositive factor, given the time interval that has passed since that testing allegedly was done. The Court acknowledges defendants' security concerns but believes that it is possible to make appropriate arrangements for testing by some person or entity not connected with Cook County, the Sheriff, or the Department of Corrections. The Court expects plaintiff to propose an ...

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