Opinion
Cause No. 3:04-CV-0658 AS.
March 11, 2005
MEMORANDUM AND ORDER
James Ervin, a prisoner confined in the Allen County Jail, submitted a complaint under 42 U.S.C. § 1983, alleging that jail officials violated his federally protected rights. The court must review the merits of a prisoner complaint seeking redress from a governmental entity or officer or employee of a governmental entity, and dismiss it if the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915A. Courts apply the same standard under § 1915A as when addressing a motion under Fed.R.Civ.P. 12(b)(6) to dismiss a complaint. Weiss v. Colley, 230 F.3d 1027, 1029 (7th Cir. 2000).
A claim may be dismissed only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. Accordingly, pro se complaints are liberally construed.
In order to state a cause of action under 42 U.S.C. § 1983, the Supreme Court requires only two elements: First, the plaintiff must allege that some person has deprived him of a federal right. Second, he must allege that the person who has deprived him of the right acted under color of state law. These elements may be put forth in a short and plain statement of the claim showing that the pleader is entitled to relief. FED. R. CIV. P. 8(a)(2). In reviewing the complaint on a motion to dismiss, no more is required from plaintiff's allegations of intent than what would satisfy Rule 8's notice pleading minimum and Rule 9(b)'s requirement that motive and intent be pleaded generally.Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001) (citations, quotation marks and ellipsis omitted).
Mr. Ervin brings this action under 42 U.S.C. § 1983, which provides a cause of action to redress the violation of federally secured rights by a person acting under color of state law. Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir. 1984). Mr. Ervin states that he can provide the court with "a memorandum of law citing relevant laws and Indiana Code 11-11 Sections." (Complaint at p. 4). But violations of state law do not state a claim upon which relief can be granted under § 1983. To state a claim under § 1983, a plaintiff must allege violation of rights secured by the Constitution and laws of the United States, and must show that a person acting under color of state law committed the alleged deprivation. West v. Atkins, 487 U.S. 42 (1988). The first inquiry in every § 1983 case is whether the plaintiff has been deprived of a right secured by the Constitution or laws of the United States. Baker v. McCollan, 443 U.S. 137, 140 (1979).
Mr. Ervin seeks damages for conditions of confinement at the Allen County Jail. The Eighth Amendment protects convicted prisoners from cruel and unusual punishments; the rights of pre-trial detainees are derived from the Fourteenth Amendment's Due Process Clause. Bell v. Wolfish, 441 U.S. 520, 535 n. 16 (1979). But "[a]n act or practice that violates the eighth amendment also violates the due process rights of pretrial detainees." Martin v. Tyson, 845 F.2d 1451, 1457 (7th Cir. 1988), cert. denied 488 U.S. 836 (1988).
An Eighth Amendment claim has two components — objective and subjective. To satisfy the objective component, "the deprivation alleged must be objectively, 'sufficiently serious.'" Henderson v. Sheahan, 196 F.3d 839, 845 (7th Cir. 1999) (citing Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). "Therefore, 'extreme deprivations are required to make out a conditions-of-confinement claim'" Id. (quoting Hudson v. McMillian, 503 U.S. 1, 9, 212 S.Ct. 995, 117 L.Ed.2d 156 (1992).Delaney v. DeTella, 256 F.3d 679, 683 (7th Cir. 2001).
The Eighth Amendment requires that prisoners receive adequate food, clothing and shelter, Farmer v. Brennan, 511 U.S. at 832, but conditions that merely cause inconvenience and discomfort or make confinement unpleasant do not rise to the level of Constitutional violations. Adams v. Pate, 445 F.2d 105, 108-109 (7th Cir. 1971). The Constitution does not mandate comfortable jails and prisons, and "only those deprivations denying "the minimal civilized measure of life's necessities' are sufficiently grave to form the basis of an Eighth Amendment violation." Wilson v. Seiter, 501 U.S. 294, 298 (1991), quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981):
(T)he conditions at the Marshall County Jail may be far from ideal. But again, the Marshall County Jail is a small, rural jail, and jails do not have to duplicate the amenities of small, rural hotels. In order to make out a claim under 42 U.S.C. § 1983, Martin must show that intentional actions of the defendants served to deprive him of a constitutional right. He has not been Constitutionally harmed here."Martin v. Tyson, 845 F.2d at 1457 (citations omitted).
In his first claim, Mr. Ervin alleges that from October 15 until October 22, 2003, there were three inmates in his cell and he had to sleep on the floor. Sleeping on the floor for seven days, however, states no claim upon which relief can be granted. See Castillo v. Bowles, 687 F.Supp. 277, 281 (N.D. Tex. 1988) (sleeping on a mattress on the floor does not deprive a prisoner of the minimal civilized measure of life's necessities).
In his fifth claim, Mr. Ervin alleges that he returned from court one evening, and Officer Plume "locked [him] in cell 23A without a chance to shower at the time." (Complaint at p. 4). Conditions that merely cause inconveniences and discomfort or make confinement unpleasant do not rise to the level of Constitutional violations. Adams v. Pate, 445 F.2d at 108-109. Denial of a shower on one occasion does not deprive a prisoner of the minimal civilized measure of life's necessities. See Harris v. Fleming, 839 F.2d 1232, 1235 (7th Cir. 1988) (no constitutional violation where an inmate was placed in a filthy, roach invested cell for ten days without soap, toothpaste, or a toothbrush, because the conditions were temporarily and the inmate had suffered no physical harm).
In his third claim, Mr. Ervin alleges that he ran out of prescribed medicated shampoo. He wrote a request to have the prescription refilled but was told he had to purchase the shampoo from the commissary. In medical cases, the Eighth Amendment test is expressed in terms of whether the defendant was deliberately indifferent to a prisoner's serious medical need. Estelle v. Gamble, 429 U.S. 97, 106 (1976). A serious medical need is one that is "life threatening or poses a risk of needless pain or lingering disability if not treated at once." Davis v. Jones, 936 F.2d 971, 972 (7th Cir. 1991). Many medical needs are nonserious for Eighth Amendment purposes. See, e.g., Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991) (cuts on two fingers from slammed food slot on cell door); Wesson v. Oglesby, 910 F.2d 278, 284 (5th Cir. 1990) (swollen wrists); Shabazz v. Barnaukas, 790 F.2d 1536, 1538 (11th Cir. 1986) (sensitive skin irritated by shaving); Johnson v. Vondera, 790 F.Supp. 898, 900 (E.D. Mo. 1992) (headaches, neck pain and blurred vision); Andrews v. Glenn, 768 F.Supp. 668, 670 (C.D. Ill. 1991) (two infected toes); Rodriguez v. Kincheloe, 763 F.Supp. 463, 469 (E.D. Wash. 1991) (injured knee); Ashford v. Barry, 737 F.Supp. 1, 3 (D.D.C. 1990) (kick in the leg); Tyler v. Rapone, 603 F.Supp. 268, 271-2 (E.D. Pa. 1985) (dental care and cut).
Mr. Ervin does not allege that he had a serious medical need within the meaning of Estelle v. Gamble. Moreover, even if he had a serious medical need, a facility requiring a nonindigent prisoner to purchase his own over-the-counter ("OTC") medication does not violate the Eighth Amendment. Martin v. DeBruyn, 880 F.Supp. 610 (N.D. Ind. 1995). "[A] prison official violates the Eighth Amendment by refusing to provide prescribed OTC medicine for a serious medical need only if the inmate lacks sufficient resources to pay for the medicine. If the inmate can afford the medicine but chooses to apply his resources elsewhere, it is the inmate, and not the prison official, who is indifferent to serious medical needs." Id. at 615. See also Hudgins v. DeBruyn, 922 F.Supp. 144 (S.D. Ind. 1996).
Mr. Ervin submitted a copy of his account with the Allen County Jail in support of his motion to proceed in forma pauperis. This ledger establishes that Mr. Ervin had sufficient funds to purchase shampoo. According to the ledger, Mr. Ervin received credits totaling $565.00 over the previous six months and made numerous purchases from the jail commissary.
In his second claim, Mr. Ervin alleges that he requested access to legal research materials and advised the defendants: "I do have an attorney, but I am an active part of my own defense." (Complaint at p. 3). The defendants advised him "that the Allen County Jail was not going to give/provide any legal research material for me and to stop asking." (Complaint at p. 3).
"The fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law." Bounds v. Smith, 430 U.S. 817 (1977) (emphasis added). A pre-trial detainee who is without counsel needs the tools necessary to prepare his defense, but jail officials are not required to provide legal materials to an inmate who "was represented by counsel on his criminal charges." Martin v. Tyson, 845 F.2d at 1457. Because Mr. Ervin had counsel, the defendants had no Constitutional obligation to also provide him with access to legal materials.
In his fourth claim, Mr. Ervin alleges that one night his cellmate complained to Officer Plume that the cell was out of toilet paper. In response, Officer Plume conducted a body search of Mr. Ervin's cellmate and placed Mr. Ervin and his cellmate in a small attorney visitation room for ten minutes while he searched their cell — apparently to ensure that they were actually out of toilet paper.
The Fourth Amendment prohibits unreasonable searches and seizures, but even assuming that Officer Plume was searching for contraband — rather than merely ensuring that there was in fact no toilet paper in the cell — this search states no claim upon which relief can be granted. The Fourth Amendment does not apply to prison cells, regardless of the reason, or lack of reason, for the search. Hudson v. Palmer, 468 U.S. 517 (1984). Prisoners have no reasonable expectation of privacy not to have their cells searched, Id. at 529, and regardless of the basis of the search, "the Fourth Amendment prescription against unreasonable searches does not apply within the confines of the prison cell." Id. at 526.
For the foregoing reasons, the court DISMISSES this complaint pursuant to 28 U.S.C. § 1915A(b)(1).
IT IS SO ORDERED.