United States District Court, C.D. Illinois
BETTY A. BURRIES, Plaintiff,
MACON COUNTY JAIL, Defendants.
MERIT REVIEW OPINION
MYERSCOUGH UNITED STATES DISTRICT JUDGE
filed this case pro se from Logan County Correctional Center.
The case is before the Court for a merit review pursuant to
28 U.S.C. § 1915A. This statute requires the Court to
review a complaint filed by a prisoner to identify the
cognizable claims and to dismiss part or all of the complaint
if no claim is stated.
reviewing the Complaint, the Court accepts the factual
allegations as true, liberally construing them in
Plaintiff's favor. Turley v. Rednour, 729 F.3d
645, 649 (7th Cir. 2013). However, conclusory
statements and labels are insufficient. Enough facts must be
provided to "'state a claim for relief that is
plausible on its face.'" Alexander v. U.S.,
721 F.3d 418, 422 (7th Cir. 2013)(quoted cite
alleges that employees at the Macon County Jail violated the
Illinois law prohibiting smoking in public places during
Plaintiff's two-month stay there from October to December
2016. In particular, Plaintiff “inhaled lots of strong
secondhand cigarette smoke” on her unit and witnessed
several officers go outside the recreation door to smoke. She
alleges that the secondhand smoke caused her
“headaches, dizziness, stomach aches and shortness of
breath.” Violations of the Smoke Free Illinois Act do
not give rise to a federal claim. Guarjardo-Palma v.
Martinson, 622 F.3d 801, 806 (7th Cir. 2010)(“[A]
violation of state law is not a ground for a federal civil
rights suit.”). The Act is enforced by the Illinois
Department of Public Health, local public health departments,
and local law enforcement agencies. 410 ILCS 82/40(a). Any
person can make a complaint with these agencies for a
violation of the Act. 410 ILCS 82/40(b).
to secondhand smoke in prison could violate federal
constitutional standards if that exposure poses “an
unreasonable risk of serious damage to  future
health.” Helling v. McKinney, 113 S.Ct. 2475,
2481 (1993). However, Plaintiff was at the Jail only two
months, making it difficult to draw a plausible inference
that she was subjected to an unreasonable risk of serious
harm. Additionally, Plaintiff can sue only the individuals
who were deliberately indifferent, meaning the individuals
who personally knew that the inside of the Jail had unsafe
levels of secondhand smoke and consciously disregarded that
risk. Plaintiff does not say what efforts she made to obtain
medical care or alert anyone of the problems she was having
because of the secondhand smoke.
the Court would dismiss a complaint that fails to state a
federal claim without prejudice to filing an amended
complaint. If the amended complaint still fails to state a
federal claim, the case is dismissed and a
“strike” is assessed pursuant to 28 U.S.C.
§1915(g). A prisoner who has acquired three strikes may
no longer proceed in forma pauperis unless she is in imminent
danger of serious physical injury.
the Court will not follow the typical procedure because
Plaintiff admits in her complaint that she did not file a
grievance “because I felt that they would willfully
neglect my well-being as they have done before.”
(Compl. p. 4.) Prisoners and detainees are required to
exhaust all available administrative remedies before filing a
federal lawsuit, even if they feel doing so would be futile.
42 U.S.C. § 1997e(a); King v. McCarty, 781 F.3d
889, 893 (7th Cir. 2015). Because Plaintiff's
failure to exhaust is plain from her Complaint, the Court
will dismiss on that ground, and no strike will be assessed.
Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir.
Plaintiff's complaint is dismissed without prejudice for
failure to exhaust her administrative remedies.
Plaintiff must still pay the full filing fee of $350 even
though her case has been dismissed. 28 U.S.C. § 1915(b).
The agency having custody of Plaintiff shall continue to make
monthly payments to the Clerk of Court, as directed in the
Court's prior order.
Plaintiff wishes to appeal this dismissal, she must file a
notice of appeal with this Court within 30 days of the entry
of judgment. Fed. R. App. P. 4(a). A motion for leave to
appeal in forma pauperis should set forth the issues
Plaintiff plans to present on appeal. See Fed. R. App. P.
24(a)(1)(C). If Plaintiff does choose to appeal, she will be
liable for the $505 appellate filing fee irrespective of the
outcome of the appeal.
clerk is directed to close this case and enter judgment.